Millner v. Biter

Filing 25

ORDER Denying 21 Motion to Appoint Counsel, signed by Magistrate Judge Stanley A. Boone on 06/13/14. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES W. MILLNER,

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Plaintiff,

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v.
MARTIN BITER, et al.,
Defendants.

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Case No.: 1:13-cv-02029-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
[ECF No. 21]

Plaintiff James W. Millner is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On June 11, 2014, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff does

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not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520,

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1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 28

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

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

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voluntary 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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In the present case, the court does not find the required exceptional circumstances. Although

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Plaintiff contends he physically impaired and suffers from a mental illness, Plaintiff has not provided

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substantial evidence to demonstrate that he in incapable of understanding and responding to court

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orders. Indeed, Plaintiff filed a second amended complaint in response to the Court’s May 8, 2014,

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order dismissing the first amended complaint, with leave to amend.

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Moreover, even if it assumed that plaintiff is not well versed in the law and that he has made

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

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alleges Eighth Amendment claims for excessive force and deliberate indifference to a serious medical

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need. The legal issues present in this action are not complex, and Plaintiff has thoroughly set forth his

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allegations in the complaint. However, at this early stage in the proceedings, the court cannot make a

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

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

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

June 13, 2014
UNITED STATES MAGISTRATE JUDGE

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