Mitchell v. DaViga, et al.

Filing 34

ORDER DENYING 33 Motion to Appoint Counsel signed by Magistrate Judge Erica P. Grosjean on 4/18/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:13-cv-01324-DAD-EPG (PC)

COREY MITCHELL,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document# 33)

B. DAVIGA, et al.,
Defendants.

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On March 31, 2016, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent Plaintiff

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pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989).

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exceptional circumstances the Court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 1525.

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However, in certain

Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases.

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).
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In determining whether

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In the present case, Plaintiff argues that he is unable to afford counsel and is not

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knowledgeable about the law and litigation. This does not make Plaintiff’s case exceptional. At

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this stage of the proceedings, the Court cannot find that Plaintiff is likely to succeed on the merits.

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While the Court has found that “[l]iberally construed, the complaint states a claim for relief

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against Defendants Sheldon and Chavez for failure to protect Plaintiff in violation of the Eighth

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Amendment,” these findings are not a determination that Plaintiff is likely to succeed on the

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merits. (ECF No. 14 at 4:20-21.) The legal issue in this case -- whether defendants were

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deliberately indifferent to a substantial risk of harm to Plaintiff – does not appear complex.

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Moreover, based on a review of the record in this case, the Court finds that Plaintiff can

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adequately articulate his claims.

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circumstances, and Plaintiff’s motion shall be denied without prejudice to renewal of the motion

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at a later stage of the proceedings.

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Thus, the Court does not find the required exceptional

For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

April 18, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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