Lescallett v. Diaz et al

Filing 44

ORDER denying 43 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 9/29/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DARRELL JUNIOR LESCALLETT,

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Plaintiff,

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v.

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R. DIAZ, et al.,

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Defendants.

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1:13-cv-01342-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S SECOND
MOTION REQUESTING THE
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE
(ECF No. 43)

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Plaintiff Darrell Junior Lescallett (“Plaintiff”) is a state prisoner proceeding in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action currently proceeds

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on Plaintiff’s claims for retaliation in violation of the First Amendment against Defendants

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Gipson, Broomfield and Doe Defendants.

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Currently before the Court is Plaintiff’s second motion for the appointment of counsel,

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filed on September 26, 2017. (ECF No. 43.)1 Plaintiff states that he is unable to afford counsel,

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that his imprisonment limits his ability to litigate, that the issues in his matter are complex, and

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he has limited law library access and limited knowledge of the law. Plaintiff further states that a

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trial in this matter will likely involve conflicting testimony, and counsel would better enable

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Plaintiff to present evidence and cross-examine witnesses.

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The substance of Plaintiff’s first motion to appoint counsel was not addressed by the Court, because that
motion was not signed by Plaintiff. (ECF No. 42.)
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Plaintiff does not have a constitutional right to appointed counsel in this civil action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney

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to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the Court may request the voluntary assistance of counsel

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pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing

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and compensating counsel, the Court will seek volunteer counsel only in the most serious and

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exceptional cases. In determining whether “exceptional circumstances exist, the district court

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must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to

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articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (internal

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quotation marks and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances. Even

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if it is assumed that Plaintiff is not well versed in the law and that he has made serious

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allegations which, if proved, would entitle him to relief, his case is not exceptional. This Court is

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faced with similar cases almost daily. Further, at this early stage in the proceedings, the Court

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cannot find any likelihood of success on the merits. Also, based on a review of the record in this

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case, the court does not find that Plaintiff cannot adequately articulate his claims. His pleadings,

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motions, and other filings are comprehensible. Thus, the Court does not find this to be a serious

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and exceptional case necessitating the appointment of counsel at this time.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for the appointment of
counsel (ECF No. 29) is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 29, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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