Schmidt v. Rodrigues et al

Filing 58

ORDER denying Plaintiff's Sixth 57 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 4/17/2017. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MARK SCHMIDT,

12

Plaintiff,

13
14

v.
RODRIGUES, et al.,

15

Defendants.

16

21

ORDER DENYING PLAINTIFF’S SIXTH
MOTION FOR APPOINTMENT OF COUNSEL
[ECF No. 57]

pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s sixth motion for appointment of counsel, filed April 3,

19
20

Case No.: 1:14-cv-01092-SAB (PC)

Plaintiff Mark Schmidt is appearing pro se and in forma pauperis in this civil rights action

17
18

)
)
)
)
)
)
)
)
)
)

2017.
As Plaintiff is well aware, he does not have a constitutional right to appointed counsel in this

22

action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any

23

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

24

Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

25

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

26

1915(e)(1). Rand, 113 F.3d at 1525.

27
28

Without a reasonable method of securing and compensating counsel, the court will seek
volunteer counsel only in the most serious and exceptional cases. In determining whether
1

1

“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the

2

merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

3

legal issues involved.” Id. (internal quotation marks and citations omitted).

4

In the present motion, Plaintiff requests that the Court appoint Justin D. Harris, Esq. as counsel

5

in this action because he has agreed to represent Plaintiff at trial. As with Plaintiff’s previous motions,

6

the Court does not find exceptional circumstances to warrant the appointment of counsel in this action.

7

While a pro se litigant may be better served with the assistance of counsel, so long as a pro se litigant,

8

such as Plaintiff in this instance, is able to “articulate his claims against the relative complexity of the

9

matter,” the “exceptional circumstances” which might require the appointment of counsel do not exist.

10

Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when

11

district court denied appointment of counsel despite fact that pro se prisoner “may well have fared

12

better-particularly in the realm of discovery and the securing of expert testimony.”) Plaintiff is

13

advised that he free to retain counsel on his own, who may appear in the action by filing a notice of

14

appearance and substitution as counsel. Accordingly, Plaintiff’s sixth motion for appointment of

15

counsel is denied, without prejudice.

16
17

IT IS SO ORDERED.

18

Dated:

19

April 4, 2017
UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
2