Bosley v. Valasco et al

Filing 81

ORDER DENYING 73 , 74 & 78 Plaintiff's Motions to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 10/3/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT DEWAYNE BOSLEY, JR.,
Plaintiff,

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Case No. 1:14-cv-00049-MJS (PC)
ORDER DENYING PLAINTIFF’S
MOTIONS TO APPOINT COUNSEL

v.
M. VELASCO, et al.,

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(ECF Nos. 73, 74, 78)

Defendants.

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Plaintiff is proceeding pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s Second Amended
Complaint charging Defendant Velasco with excessive force in violation of the
Fourteenth Amendment. This matter is set for a trial on January 18, 2017. (ECF No. 75.)
Now pending are Plaintiff’s three motions for appointment of counsel. (ECF Nos.
73, 74, 78.) In each motion, Plaintiff contends that his ability to properly litigate this
action is affected by his in forma pauperis status and his imprisonment. Plaintiff’s
previously-filed motion for appointment of counsel was denied on June 18, 2015. (ECF
Nos. 25, 27.)

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Plaintiff does not have a constitutional right to appointed counsel in this action,
Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and 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).
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.
However, 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 Aexceptional circumstances exist, the district court must evaluate
both the likelihood of success of 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 the present case, the Court does not find the required exceptional
circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that
he has made serious allegations which, if proved, would entitle him to relief, his case is
not exceptional. This Court is faced with similar cases almost daily. Further, despite his
in forma pauperis status and his incarceration, Plaintiff was successful in opposing
Defendant’s motion for summary judgment, thus demonstrating his ability to adequately
litigate this case.
For the foregoing reasons, Plaintiff’s motions for the appointment of counsel
(ECF Nos. 73, 74, 78) are HEREBY DENIED.

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Dated:

October 3, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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