Anderson v. Gonzales et al

Filing 42

ORDER denying 41 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 4/20/2017. (Lundstrom, T)

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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.
GONZALES, et al.,

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Case No. 1:14-cv-00362-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF
COUNSEL
(ECF No. 41)

Defendants.

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Plaintiff Joseph E. Anderson (“Plaintiff”) is a state prisoner proceeding in forma pauperis

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in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s second

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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

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in violation of the Eighth Amendment and failure to protect Plaintiff from assault at the hands of

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another inmate in violation of the Eighth Amendment.
On August 24, 2016, Plaintiff filed a motion for the appointment of counsel. (ECF No.

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32.) On August 30, 2016, the Court denied the motion, finding that the matter did not present

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exceptional circumstances. (ECF No. 35.)
On April 19, 2017, Plaintiff filed the instant motion for the appointment of counsel. (ECF

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No. 41.) Plaintiff raises similar grounds for the appointment of counsel as his previous motion,

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including the lack of legal knowledge and resources, and difficulties litigating his case as a

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prisoner.

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I.

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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), reversed in part on

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

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

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

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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Legal Standard

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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II.

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The Court has considered Plaintiff’s renewed motion for the appointment of counsel, but

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again does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is

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not well versed in the law and that he has made serious allegations which, if proved, would entitle

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him to relief, his case is not exceptional. As previously indicated, this Court is faced with similar

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cases involving claims of excessive force and failure to intervene filed by prisoners proceeding in

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forma pauperis almost daily. These prisoners also must conduct legal research and prosecute

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claims without the assistance of counsel. There is no indication that Plaintiff is unable to conduct

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legal research to assist him in this matter or that he is unable to articulate his claims.

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Discussion

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

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Plaintiff is likely to succeed on the merits. Although the Court has determined Plaintiff has stated

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claims which may proceed in litigation, it has not determined that those claims have a likelihood

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of being ultimately successful.

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For the foregoing reasons, Plaintiff’s second motion for the appointment of counsel (ECF
No. 41) is HEREBY DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 20, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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