Brown v. Gipson et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Case No.: 1:13-cv-02084-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL, WITHOUT
(ECF No. 45)
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
dated September 10, 2017. (ECF No. 45.) The motion was received and docketed on September
15, 2017. Plaintiff seeks counsel on the basis that he is unable to afford counsel and proceeds in
forma pauperis, his imprisonment limits his ability to litigate, the issues in this case are complex
and would be better handled by counsel, and he has limited law library access and legal
On September 11, 2017, this case was stayed for 90 days pending alternative dispute
resolution, and no pleadings or other documents may be filed in this case during the stay of this
action, except as provided by court order. (ECF No. 44.) However, because Plaintiff’s motion was
provided to prison officials for service prior to the entry of the stay in this case, the Court will
consider and rule upon Plaintiff’s motion.
Plaintiff does not have a constitutional right to appointed counsel in this action. Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952
n.1 (9th Cir. 1998). The Court cannot require an attorney to represent Plaintiff pursuant to 28
U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,
490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in certain exceptional circumstances,
the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,
113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the Court
will seek volunteer counsel only in the most serious and exceptional cases. In determining
whether “exceptional circumstances exist, the district court must evaluate both the likelihood of
success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of
the complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
In this case, the Court does not find the required exceptional circumstances warranting
appointment of counsel. Circumstances common to most prisoners, such as lack of legal
education and limited law library access, do not establish exceptional circumstances that would
warrant a request for voluntary assistance of counsel. Further, at this early stage in the litigation,
the Court cannot make a determination that Plaintiff is likely to succeed on the merits.
Plaintiff also discusses that he has not had full access to his legal materials. He has
submitted materials showing that he has received some legal advice on filing internal complaints
related to these issues. Plaintiff has also filed a request for an extension of time due to lack of
access to his legal materials, which the Court will address separately.
Accordingly, Plaintiff’s motion for appointed counsel is HEREBY DENIED, without
IT IS SO ORDERED.
September 19, 2017
UNITED STATES MAGISTRATE JUDGE
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