Cottrell v. Ogbuehi et al

Filing 39

ORDER Denying 38 Plaintiff's Motion for Appointment of Counsel, without Prejudice, signed by Magistrate Judge Stanley A. Boone on 5/12/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DALE L. COTTRELL,

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Plaintiff,

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v.

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FELIX IGBINOSA, et al.,

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Defendants.

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Case No.: 1:13-cv-01530-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE
[ECF No. 38]

Plaintiff Dale L. Cottrell is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On May 11, 2015, Plaintiff filed a motion for the appointment of counsel. There is no

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constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th

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Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 28 U.S.C. §

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1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296,

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298 (1989). However, in certain exceptional circumstances the court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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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. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the

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

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legal issues involved.” Id. (internal quotation marks and citations omitted).

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This action is proceeding against Defendants C. Lackey, Karen Berard, Ifeoma Ogbuehi, Rajib

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Das, Miran Park, Angelica Duenas, and Felix Igbinosa for deliberate indifference to a serious medical

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need in violation of the Eighth Amendment. On April 15, 2015, Defendants Berard, Das, Duenas,

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Igbinosa, and Ogbeuhi filed an answer to the complaint.1 On April 16, 2015, the Court issued the

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discovery and scheduling order.

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Plaintiff seeks the appointment of counsel because he is indigent, the issues involved in the

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case are complex, medical experts will be necessary for depositions and trial proceedings, and he is

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layman at law.
In the present case, the Court does find that neither the interests of justice nor exceptional

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circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Even if it is assumed that Plaintiff

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is not well versed in the law and that he has made serious allegations which, if proved, would entitle

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him to relief, his case is not exceptional. The facts alleged appear straightforward and unlikely to

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involve extensive investigation and discovery. At this early stage in the proceedings, the court cannot

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make a determination that Plaintiff is likely to succeed on the merits, and based on a review of the

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record in this case, the Court does not find that plaintiff cannot adequately articulate his claims. Id.

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Plaintiff is proceeding on a claim of deliberate indifference and the legal issues present in this action

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are not complex, and Plaintiff has thoroughly set forth his allegations and filed appropriate motions for

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relief in this action.
While a pro se litigant may be better served with the assistance of counsel, so long as a pro se

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litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative

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complexity of the matter,” the “exceptional circumstances” which might require the appointment of

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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28

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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner

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Defendants Lackey and Park have not yet been served with process.

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“may well have fared better-particularly in the realm of discovery and the securing of expert

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testimony.”) Plaintiff’s lack of education, lack of resources, and lack of certain legal knowledge, does

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not demonstrate exceptional circumstances. This Court is faced with cases brought by prisoners in

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similar circumstances almost daily. Accordingly, Plaintiff motion for appointment of counsel is

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DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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May 12, 2015
UNITED STATES MAGISTRATE JUDGE

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