Stewart v. Holland et al
ORDER DENYING Plaintiff's 56 Motion to Appoint Counsel without Prejudice signed by Magistrate Judge Barbara A. McAuliffe on 2/28/2018. (Sant Agata, S)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
K. HOLLAND, et al.,
Case No.: 1:14-cv-00322-DAD-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL, WITHOUT
(ECF No. 56)
Plaintiff Tracy Stewart is a state prisoner who is currently proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Currently before the Court is Plaintiff’s motion for the appointment of counsel, filed
February 26, 2018. (ECF No. 56.)
As Plaintiff was previously informed, he does not have a constitutional right to appointed
counsel in this action. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on
other grounds, 154 F.3d 952, 954 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. U.S. Dist. Court for the S. Dist.
of Iowa, 490 U.S. 296, 298 (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, a 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).
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. A
review of the record in this case shows that Plaintiff is able to articulate his claims and arguments,
and the legal issues he proceeds upon are not complex. Plaintiff asserts that his imprisonment will
limit his ability to litigate this case, and Plaintiff’s handwriting and mental status make it difficult
for him to relay legal arguments to the Court. Furthermore, Plaintiff has heard that there will be
construction done on the facility law library beginning in February 2018, meaning that he will
have no law library at his institution.
Based on these facts, the Court does not find that Plaintiff is unable to litigate his case.
Furthermore, at this stage in the proceedings, the Court cannot make a determination that Plaintiff
is likely to succeed on the merits, which is another necessary factor to consider in determining
whether counsel should be appointed here. In sum, based on the relevant factors and the record at
this time, the Court does not find the required exceptional circumstances for the appointment of
Accordingly, Plaintiff’s motion for the appointment of counsel, (ECF No. 56), is
HEREBY DENIED, without prejudice.
IT IS SO ORDERED.
February 28, 2018
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?