Hypolite v. Zariora et al

Filing 15

ORDER DENYING 13 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 2/19/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AVERY HYPOLITE,

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Plaintiff,
v.
R. ZAMORA, et al.,
Defendants.

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Case No.: 1:14-cv-01199-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
[ECF No. 13]

Plaintiff Avery Hypolite is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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On February 13, 2015, Plaintiff filed a motion for the appointment of counsel. Plaintiff

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previously requested and this Court denied a request for the appointment of counsel. (ECF No. 5.) In

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the present motion, Plaintiff seeks appointment of counsel because he is unable to afford counsel, his

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imprisonment will greatly limit his ability to litigate the issues, and a trial in this case will likely

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involve conflicting testimony and cross-examination of witnesses.

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There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d

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1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to

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28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490

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U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the

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voluntary assistance of counsel pursuant to 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).
In the present case, the Court does find that neither the interests of justice nor exceptional

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circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff is proceeding on a claim

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of excessive force and the legal issues present in this action are not complex, and Plaintiff has

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thoroughly set forth his allegations in the complaint.
While a pro se litigant may be better served with the assistance of counsel, so long as a pro se

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

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complexity of the matter,” the “exceptional circumstances” which might require the appointment of

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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28

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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner

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“may well have fared better-particularly in the realm of discovery and the securing of expert

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testimony.”) Plaintiff’s assertions regarding presenting evidence and cross-examining witnesses at a

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future trial does not present an exceptional circumstance warranting appointment of counsel, as this

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case is in the service stage and has not yet survived summary judgment. Accordingly, Plaintiff motion

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for appointment of counsel is DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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February 19, 2015
UNITED STATES MAGISTRATE JUDGE

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