Campbell v. Beard et al
Filing
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ORDER DENYING Plaintiff's 28 Motion to Appoint Counsel, without prejudice, signed by Magistrate Judge Stanley A. Boone on 07/06/2015. (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY TYRONE CAMPBELL, SR.
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Plaintiff,
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v.
JEFFREY BEARD, et al.,
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Defendants.
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Case No.:1:14-cv-00801-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE
[ECF No. 28]
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Plaintiff Anthony Tyrone Campbell Sr. is appearing pro se and in forma pauperis in this civil rights
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action pursuant to 42 U.S.C. § 1983.
On May 18, 2015, Plaintiff filed a motion for the appointment of counsel. Plaintiff previously
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filed a motion for appointment of counsel which was denied. (ECF Nos. 5, 8.) As Plaintiff was
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advised previously, he does not have a constitutional right to appointed counsel in this action, Rand v.
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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any 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 (1989). However, in certain exceptional circumstances the court
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may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at
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1525.
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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, the district court must evaluate both the likelihood of success on the
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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the
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legal issues involved.” Id. (internal quotation marks and citations omitted).
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In the present case, the Court does not find the required exceptional circumstances. Even if it
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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. Plaintiff alleges an Eighth Amendment
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claim against several defendants for the use of excessive force. The legal issues present in this action
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are not complex, and Plaintiff has thoroughly set forth his allegations in the complaint. However, at
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this early stage in the proceedings, the court cannot make a determination that Plaintiff is likely to
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succeed on the merits, and based on a review of the record in this case, the court does not find that
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plaintiff cannot adequately articulate his claims. Id.
While a pro se litigant may be better served with the assistance of counsel, so long as a pro se
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litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative
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complexity of the matter,” the “exceptional circumstances” which might require the appointment of
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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28
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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner
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“may well have fared better-particularly in the realm of discovery and the securing of expert
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testimony.”) The fact that Plaintiff’s imprisonment limits his ability to research and investigate his
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case does not present extraordinary circumstances because Plaintiff is in the same position as any
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other prisoner who files a section 1983 action. Plaintiff’s assertions regarding presenting evidence and
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cross-examining witnesses at a future trial does not present an exceptional circumstance warranting
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appointment of counsel. Accordingly, Plaintiff motion for appointment of counsel is DENIED,
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without prejudice.
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IT IS SO ORDERED.
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Dated:
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July 6, 2015
UNITED STATES MAGISTRATE JUDGE
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