Anderson v. Gonzales et al

Filing 35

ORDER DENYING 32 Motion to Appoint Counsel, Without Prejudice signed by Magistrate Judge Barbara A. McAuliffe on 8/30/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH E. ANDERSON,

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Plaintiff,

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v.
A. GONZALES, et al.,

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Defendants.

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Case No.: 1:14-cv-00362-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S REQUEST FOR
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE
(ECF No. 32)

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Plaintiff Joseph E. Anderson (“Plaintiff”) is state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s

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second amended complaint against Defendant Laita for excessive force in violation of the Eighth

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Amendment, and against Defendant Gonzales for failure to intervene in the use of excessive force in

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violation of the Eighth Amendment and failure to protect from an assault by another inmate in

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violation of the Eighth Amendment.

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Currently before the Court is Plaintiff’s motion for the appointment of counsel. (ECF No. 32.)

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Plaintiff states that he is a layman at the law, can be appointed an attorney at this stage in his case, has

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no experience with discovery, depositions, etc., and is at the mercy of the Court to help him in seeking

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justice in this matter.

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Plaintiff does not have a constitutional right to appointed counsel in this civil action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent

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Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in certain exceptional

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating

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counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate both the

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likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in

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

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omitted).

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In the present case, the Court does not find the required exceptional circumstances. Even if it is

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assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. This Court is faced with similar cases

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alleging excessive force almost daily. Further, at this early stage in the proceedings, the Court cannot

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find any likelihood of success on the merits. Also, based on a review of the record in this case, the

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court does not find that Plaintiff cannot adequately articulate his claims. Id. Plaintiff’s arguments,

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pleadings, and motions are comprehensible, and he has defeated Defendants’ motion to dismiss. Thus,

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the Court does not find this to be a serious and exceptional case necessitating the appointment of

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counsel at this time.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for the appointment of counsel

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(ECF No. 32) is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

August 30, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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