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)

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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

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