McClure v. Chen, et al.

Filing 72

ORDER denying 71 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 10/11/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:14-cv-00932-DAD-GSA (PC)

GEORGE McCLURE,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document # 71)

C.K. CHEN, et al.,
Defendants.

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On October 5, 2018, 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).

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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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However, in certain

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.

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of

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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 determining whether

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In the present case, Plaintiff argues that he is unable to afford counsel, his eyesight is

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failing, he lacks sufficient access to the law library, and all previous filings and arguments in this

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case have been done by another inmate who is unable to continue as Plaintiff’s “jailhouse lawyer”

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and advisor. (ECF No. 71 ¶3.) While these conditions are challenging, they do not make

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Plaintiff’s case exceptional under the law. At this stage of the proceedings, the court cannot find

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that Plaintiff is likely to succeed on the merits. While the court has found that Plaintiff’s

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amended complaint “states a claim for damages against Defendants Horton and Chen for

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violating Plaintiff’s rights under the Eighth Amendment,” these findings are not a determination

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that Plaintiff is likely to succeed on the merits. (ECF No. 15 at 1:19-21.) The legal issue in this

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case --whether defendants failed to provide adequate medical care -- is not complex, and based on

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a review of the record in this case, Plaintiff can adequately articulate his claims. Thus, the court

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does not find the required exceptional circumstances, and Plaintiff’s motion shall be denied

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without prejudice to renewal of the motion at a later stage of the proceedings.

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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.
Dated:

October 11, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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