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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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 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.

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On September 10, 2014, Plaintiff filed a third motion for the appointment of counsel.

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Plaintiff previously filed two motions for the appointment of counsel which were both denied

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on June 13, 2014, and June 27, 2014, respectively.
As Plaintiff was previously advised, Plaintiff 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), and the court cannot

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require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States

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District Court for the Southern District of Iowa, 490 U.S. 296, 298 (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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“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).
In the present case, the Court does not find the required exceptional circumstances. Although

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Plaintiff contends he is disabled, Plaintiff has not provided substantial evidence to demonstrate that he

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in incapable of understanding and responding to court orders. Indeed, Plaintiff filed a third amended

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complaint in response to the Court’s July 31, 2014, order dismissing the first amended complaint, with

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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.
For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY

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DENIED.

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IT IS SO ORDERED.

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Dated:

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September 15, 2014
UNITED STATES MAGISTRATE JUDGE

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