Moore v. Gipson et al

Filing 100

ORDER DENYING 99 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 9/5/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MERRICK JOSE MOORE,

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Plaintiff,

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ORDER DENYING MOTION TO APPOINT
COUNSEL

v.

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Case No. 1:13-cv-01820-BAM (PC)

GIPSON, et al.,

(ECF No. 99)

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Defendants.

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Plaintiff Merrick Jose Moore (“Plaintiff”) is a state prisoner proceeding pro se and in

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

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Plaintiff’s Eighth Amendment claims for excessive force against Defendants Meier, Casas,

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Childress, and Adams, and for failure to intervene against Defendants Ford and Thornburg.
Currently before the Court is Plaintiff’s second motion for appointment of counsel, filed

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August 30, 2018. (ECF No. 99.) Plaintiff claims that he is unable to afford counsel, his

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imprisonment will greatly limit his ability to litigate, and the issues involved in this case are

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complex and will require significant investigation. Furthermore, Plaintiff argues that his current

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housing status allows him very limited access to legal materials, and he has no ability to

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investigate the facts to his claim. Plaintiff states that his current level of care for his mental health

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treatment has increased since he last filed a request for counsel in 2017, from CCCMS to ICF.

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(Id.)
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As Plaintiff has been informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.

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of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may

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

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1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek
volunteer counsel only in the most serious and exceptional cases. In determining whether

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

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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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The Court has considered Plaintiff’s renewed motion for the appointment of counsel, but

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does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not

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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. This Court is faced with similar cases filed by prisoners

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proceeding pro se and in forma pauperis almost daily. These prisoners also must conduct legal

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research, prosecute claims, and conduct discovery without the assistance of counsel.

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The Court has also considered Plaintiff’s mental health treatment level. However,

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Plaintiff has not provided any evidence demonstrating that this participation hampers his ability to

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prosecute this action. Plaintiff argues that he is unable to fully conduct discovery into his claims,

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including taking photos of the scene of the incident or interviewing other inmate witnesses, the

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Court notes that discovery in this action has been closed since November 9, 2017. Plaintiff’s

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motion for modification of the scheduling order, filed August 22, 2018, remains pending before

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the Court, and no ruling has been issued. Therefore, discovery remains closed at this time,

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whether Plaintiff is appointed counsel or not.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that
Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the
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Court does not find that Plaintiff cannot adequately articulate his claims. Throughout this action,

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Plaintiff has been able to prepare and file documents that clearly set forth his contentions without

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any assistance.

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For the foregoing reasons, Plaintiff’s motion to appoint counsel (ECF No. 99) is DENIED,
without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 5, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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