Fisher v. Director of OPS of CDCR

Filing 31

ORDER DENYING Motion for Appointment of Counsel 30 , signed by Magistrate Judge Barbara A. McAuliffe on 10/7/14: Motion is DENIED without prejudice. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY FRANCIS FISHER,

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Plaintiff,

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v.
DIRECTOR OF OPS OF CDCR,

1:14-cv-00901 BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 30)

Defendant(s).

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On August 15, 2014, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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

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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

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 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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Aexceptional circumstances exist, the 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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In the present case, the court does not find the required exceptional circumstances. Even

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

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which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with

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similar cases almost daily. Although Plaintiff cites to serious medical issues, including partial

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paralysis and a traumatic brain injury, there is no indication in the record that Plaintiff is unable to

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articulate his claims or his position in this action. To the extent Plaintiff requires additional time

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to meet court deadlines due to his physical condition or due to his lack of access to legal

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materials, he may request appropriate extensions of time from the court. Further, at this early

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stage in the proceedings, the court cannot make a determination that Plaintiff is likely to succeed

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on the merits. Id.
For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED without prejudice.

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IT IS SO ORDERED.
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Dated:

/s/ Barbara

October 7, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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