Millner v. Biter

Filing 32

ORDER DENYING Plaintiff's Third 31 Motion to Appoint Counsel, signed by Magistrate Judge Stanley A. Boone on 09/15/14. (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES W. MILLNER, 12 Plaintiff, 13 14 15 v. MARTIN BITER, et al., Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No.: 1:13-cv-02029-SAB (PC) ORDER DENYING PLAINTIFF’S THIRD MOTION FOR APPOINTMENT OF COUNSEL [ECF No. 31] Plaintiff James W. Millner is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On September 10, 2014, Plaintiff filed a third motion for the appointment of counsel. 20 Plaintiff previously filed two motions for the appointment of counsel which were both denied 21 22 on June 13, 2014, and June 27, 2014, respectively. As Plaintiff was previously advised, Plaintiff does not have a constitutional right to appointed 23 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot 24 require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States 25 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain 26 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 27 section 1915(e)(1). Rand, 113 F.3d at 1525. 28 1 Without a reasonable method of securing and compensating counsel, the court will seek 1 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 4 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 legal issues involved.” Id. (internal quotation marks and citations omitted). In the present case, the Court does not find the required exceptional circumstances. Although 6 7 Plaintiff contends he is disabled, Plaintiff has not provided substantial evidence to demonstrate that he 8 in incapable of understanding and responding to court orders. Indeed, Plaintiff filed a third amended 9 complaint in response to the Court’s July 31, 2014, order dismissing the first amended complaint, with 10 leave to amend. 11 Moreover, even if it assumed that plaintiff is not well versed in the law and that he has made 12 serious allegations which, if proved, would entitle him to relief, his case is not exceptional. Plaintiff 13 alleges Eighth Amendment claims for excessive force and deliberate indifference to a serious medical 14 need. The legal issues present in this action are not complex, and Plaintiff has thoroughly set forth his 15 allegations in the complaint. However, at this early stage in the proceedings, the court cannot make a 16 determination that Plaintiff is likely to succeed on the merits, and based on a review of the record in 17 this case, the court does not find that plaintiff cannot adequately articulate his claims. Id. For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY 18 19 DENIED. 20 21 IT IS SO ORDERED. 22 Dated: 23 September 15, 2014 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2

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