Moore v. Gipson et al
ORDER DENYING 28 Motion to Appoint Counsel Without Prejudice, signed by Magistrate Judge Barbara A. McAuliffe on 3/8/17. (Marrujo, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MERRICK JOSE MOORE,
CONNIE GIPSON, et al.,
ORDER DENYING PLAINTIFF’S MOTION
FOR COUNSEL WITHOUT PREJUDICE
(ECF No. 28)
Plaintiff Merrick Jose Moore (“Plaintiff”) is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court
is Plaintiff’s motion for the appointment of counsel filed on March 6, 2017. In support of his
motion, Plaintiff explains that he had an informal agreement that counsel in another case would
work with him on the present case. However, counsel has informed Plaintiff that it is necessary
to withdraw from the informal agreement. Plaintiff now requests that counsel be appointed by the
Court. Plaintiff believes that his action is meritorious, and argues that imprisonment will hinder
his ability to litigate, that the issues involved are complex and that counsel would better enable
him to present evidence and cross-examine witnesses.
Plaintiff also mentions that he is a
participant in the CDCR Mental Health Program, currently classified as CCCMS. (ECF No. 28).
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to
represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for
the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in
certain exceptional circumstances the Court may request the voluntary assistance of counsel
pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 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 “exceptional circumstances exist, the
district court must evaluate both the likelihood of success on the merits [and] the ability of the
[plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.”
Id. (internal quotation marks and citations omitted).
In the present case, the Court does not find the required exceptional circumstances.
Plaintiff has not identified any circumstances warranting appointment of counsel. While Plaintiff
mentions his participation in the CDCR Mental Health Program, he has not provided any
evidence demonstrating that this participation hampers his ability to prosecute the action.
Moreover, even if it is assumed that Plaintiff is not well versed in the law and that he has made
serious allegations which, if proved, would entitle him to relief, his case is not exceptional. This
Court is faced with similar cases almost daily from indigent prisoners proceeding without
Further, at this early stage in the proceedings, the Court cannot make a
determination that Plaintiff is likely to succeed on the merits. Although Plaintiff has asserted
cognizable claims, this is not equivalent to a determination that he is likely to succeed on the
merits. Additionally, based on a review of the record in this case, the Court does not find that
Plaintiff cannot adequately articulate his claims.
For these reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.
March 8, 2017
UNITED STATES MAGISTRATE JUDGE
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