Stewart v. Holland et al

Filing 57

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TRACY STEWART,

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Plaintiff,
v.
K. HOLLAND, et al.,

Case No.: 1:14-cv-00322-DAD-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL, WITHOUT
PREJUDICE
(ECF No. 56)

Defendants.

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Plaintiff Tracy Stewart is a state prisoner who is currently proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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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

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counsel in this action. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998). The court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. §1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.

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of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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1525. Without a reasonable method of securing and compensating counsel, the court will seek

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

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“exceptional circumstances exist, a district court must evaluate both the likelihood of success on
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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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

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Even if it is assumed that Plaintiff is not well versed in the law and that he has made

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serious allegations which, if proved, would entitle him to relief, his case is not exceptional. A

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review of the record in this case shows that Plaintiff is able to articulate his claims and arguments,

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and the legal issues he proceeds upon are not complex. Plaintiff asserts that his imprisonment will

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limit his ability to litigate this case, and Plaintiff’s handwriting and mental status make it difficult

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for him to relay legal arguments to the Court. Furthermore, Plaintiff has heard that there will be

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construction done on the facility law library beginning in February 2018, meaning that he will

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have no law library at his institution.
Based on these facts, the Court does not find that Plaintiff is unable to litigate his case.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that Plaintiff

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is likely to succeed on the merits, which is another necessary factor to consider in determining

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whether counsel should be appointed here. In sum, based on the relevant factors and the record at

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this time, the Court does not find the required exceptional circumstances for the appointment of

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counsel here.

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Accordingly, Plaintiff’s motion for the appointment of counsel, (ECF No. 56), is
HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 28, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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