Schmidt v. Rodrigues et al

Filing 30

ORDER DENYING, Without Prejudice, Plaintiff's Third 29 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 6/15/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK SCHMIDT,

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Plaintiff,
v.
RODRIGUES, et al.,

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Defendants.

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Case No.: 1:14-cv-01092-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S THIRD MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 29]

Plaintiff Mark Schmidt is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On June 11, 2015, Plaintiff filed a third motion for the appointment of counsel. Plaintiff

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previously filed two separate motions for the appointment of counsel, which were denied. (ECF Nos.

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7, 10, 18 20 .)

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As Plaintiff was previously advised, 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), and the court cannot

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require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States

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District Court for the Southern District of Iowa, 490 U.S. 296, 298 (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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“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. This action is proceeding against

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Defendants Villanueba, Nye, Haws, and DeCou for endangering Plaintiff’s safety in violation of the

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Eighth Amendment. On April 2, 2015, the Court ordered service by the United States marshal. (ECF

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No. 25.) At this early stage in the proceedings, the Court cannot make a determination that Plaintiff is

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likely to succeed on the merits, and based on a review of the record in this case, the Court does not

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find that Plaintiff cannot adequately articulate his claims. Id.
For the foregoing reasons, Plaintiff’s third motion for the appointment of counsel is HEREBY

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DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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June 15, 2015
UNITED STATES MAGISTRATE JUDGE

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