Sansone v. Thomas

Filing 21

ORDER denying 19 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 9/18/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD SANSONE,

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Plaintiff,

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v.

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J. C. THOMAS,

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1:13-cv-01942-LJO-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 19)

Defendant.

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On September 15, 2014, plaintiff filed a motion seeking the appointment of counsel.

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

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

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

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

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

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of 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 the present case, Plaintiff argues that he is in a mental health program, cannot afford

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counsel, and is detained in administrative segregation with limited access to his legal property and

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the law library. This does not make Plaintiff’s case exceptional. This court is faced with similar

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cases daily. While the court has found that “Plaintiff’s complaint states a claim under the Eighth

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Amendment against Defendant Thomas for use of excessive physical force,” this finding is not a

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determination that Plaintiff is likely to succeed on the merits and at this juncture, the court cannot

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find that Plaintiff is likely to succeed on the merits. (Order, Doc. 9 at 4:3-4.) Plaintiff’s claim for

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excessive force against one defendant does not appear complex, 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.

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Thus, the court does not find the required exceptional circumstances, and Plaintiff’s motion shall

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be denied without prejudice to renewal of the motion at a later stage of the proceedings.

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For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.

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Dated:

September 18, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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