Brown v. Gipson et al

Filing 48

ORDER DENYING Plaintiff's 45 Motion to Appoint Counsel, without prejudice, signed by Magistrate Judge Barbara A. McAuliffe on 09/19/2017. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM BROWN,

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Plaintiff,
v.
W. RASLEY,

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Case No.: 1:13-cv-02084-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL, WITHOUT
PREJUDICE
(ECF No. 45)

Defendant.

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Plaintiff William Brown is a state prisoner, proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed a motion requesting the appointment of counsel, with a proof of service

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dated September 10, 2017. (ECF No. 45.) The motion was received and docketed on September

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15, 2017. Plaintiff seeks counsel on the basis that he is unable to afford counsel and proceeds in

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forma pauperis, his imprisonment limits his ability to litigate, the issues in this case are complex

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and would be better handled by counsel, and he has limited law library access and legal

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knowledge.

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On September 11, 2017, this case was stayed for 90 days pending alternative dispute

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resolution, and no pleadings or other documents may be filed in this case during the stay of this

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action, except as provided by court order. (ECF No. 44.) However, because Plaintiff’s motion was

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provided to prison officials for service prior to the entry of the stay in this case, the Court will

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consider and rule upon Plaintiff’s motion.

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

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952

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n.1 (9th Cir. 1998). The Court cannot require an 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,

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490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in certain exceptional circumstances,

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the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the Court

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will seek volunteer counsel only in the most serious and exceptional cases. In determining

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whether “exceptional circumstances exist, the district court must evaluate both the likelihood of

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success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of

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the complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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In this case, the Court does not find the required exceptional circumstances warranting

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appointment of counsel. Circumstances common to most prisoners, such as lack of legal

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education and limited law library access, do not establish exceptional circumstances that would

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warrant a request for voluntary assistance of counsel. Further, at this early stage in the litigation,

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the Court cannot make a determination that Plaintiff is likely to succeed on the merits.

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Plaintiff also discusses that he has not had full access to his legal materials. He has

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submitted materials showing that he has received some legal advice on filing internal complaints

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related to these issues. Plaintiff has also filed a request for an extension of time due to lack of

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access to his legal materials, which the Court will address separately.

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Accordingly, Plaintiff’s motion for appointed counsel is HEREBY DENIED, without
prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 19, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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