Dulaney v. Fresno Police Department et al

Filing 16

ORDER DENYING 7 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 1/21/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARIO DULANEY,

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Plaintiff,
v.
JERRY DYER, FRESNO POLICE
DEPARTMENT, FRESNO POLICE
OFFICER RICHARD BADILLA, FRESNO
POLICE OFFICER MATHEW SILVER
Defendant.

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Case No. 1:14-cv-1051-LJO-BAM
ORDER DENYING REQUEST FOR
APPOINTMENT OF COUNSEL
(ECF No. 7)

Plaintiff Mario Dulaney (“Plaintiff”) appears to be a pretrial detainee proceeding pro se

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and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 24,

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2014, Plaintiff filed a motion for appointment of counsel. Plaintiff claims that he is incarcerated,

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and that the issues in the case are complicated.

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Plaintiff does not have a constitutional right to the appointment of counsel in this action.

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353

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(9th Cir. 1981). The Court may request the voluntary assistance of counsel pursuant to 28

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U.S.C. § 1915(e)(1), but it will do so only if exceptional circumstances exist. Palmer, 560 F.3d

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at 970; Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In making this

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determination, the Court must evaluate the likelihood of success on the merits and the ability of

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Plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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Palmer, 560 F.3d at 970 (citation and quotation marks omitted); Wilborn, 789 F.2d at 1331.

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Neither consideration is dispositive and they must be viewed together. Palmer, 560 F.3d at 970

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(citation and quotation marks omitted); Wilborn, 789 F.2d at 1331.

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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

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allegations which, if proved, would entitle him to relief, his case is not exceptional. The Court is

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faced with similar cases almost daily. Further, the Court has dismissed his complaint with leave

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to amend and no claims are currently pending. Therefore, Plaintiff’s request for the appointment

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of counsel is HEREBY DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 21, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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