Washington et al v. Fresno County Sheriff et al

Filing 41

ORDER DENYING 38 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 7/29/2014. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PERRY WASHINGTON, et al, Plaintiffs, 12 13 Case No. 1:14-cv-00129-AWI-SAB ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL v. (ECF No. 38) 14 15 FRESNO COUNTY SHERIFF, et al., Defendants. 16 17 Plaintiff Perry Washington, appearing pro se and informa pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983, filed a motion for appointment of counsel on July 18, 2014. 19 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 20 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 21 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 22 for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 23 certain exceptional circumstances the court may request the voluntary assistance of counsel 24 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525; Terrell v. Brewer, 935 F.2d 1015, 1017 25 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both ‘the 26 likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se 27 in light of the complexity of the legal issues involved.’ Neither of these factors is dispositive and 28 both must be viewed together before reaching a decision.” Terrell, 935 F.2d at 1017 (quoting 1 1 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986)). Without a reasonable method of securing and compensating counsel, the court will seek 2 3 volunteer counsel only in the most serious and exceptional cases. In the present case, the court 4 does not find the required exceptional circumstances. The legal issued involved in this action are 5 not complex. Even if it is assumed that plaintiff is not well versed in the law and that he has 6 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 7 This court is faced with similar cases almost daily. Further, at this early stage in the proceedings, 8 the court cannot make a determination that plaintiff is likely to succeed on the merits, and based 9 on a review of the record in this case, the court does not find that plaintiff cannot adequately 10 articulate his claims. Id. Plaintiff has adequately set forth allegations to state a claim for 11 deliberate indifference. Finally, Plaintiff merely submitted a request for appointment of counsel 12 without showing that any exceptional circumstances exist hindering him from proceeding pro se 13 in this action. For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY 14 15 DENIED, without prejudice. 16 17 IT IS SO ORDERED. 18 Dated: July 29, 2014 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

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