Hypolite v. Zariora et al

Filing 62

ORDER DENYING Plaintiff's Eighth 61 Motion to Appoint Counsel, signed by Magistrate Judge Stanley A. Boone on 12/14/2016. (Martin-Gill, 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,

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Defendant.

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Case No.: 1:14-cv-01199-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S EIGHTH
MOTION FOR APPOINTMENT OF COUNSEL
[ECF No. 61]

Plaintiff Avery Hypolite is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s eighth motion for appointment of counsel, filed

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December 13, 2016. This case is currently set for jury on May 23, 2017, before Chief District Judge

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Lawrence J. O’Neill.

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As Plaintiff is well aware, there is no constitutional right to appointed counsel in this action,

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

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

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

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the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113

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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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As with Plaintiff’s prior motions, the Court does find that the interests of justice or exceptional

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circumstances warrant appointment of counsel. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987);

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

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force and the legal issues present in this action are not complex, and Plaintiff has thoroughly set forth

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his allegations in the complaint and filed several motions in the action. Plaintiff’s circumstances are

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no different than any other prisoner, and Plaintiff has failed to demonstrate exceptional circumstances

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to warrant the appointment of voluntary counsel in this action. While a pro se litigant may be better

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served with the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is

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able to “articulate his claims against the relative complexity of the matter,” the “exceptional

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circumstances” which might require the appointment of counsel do not exist. Rand v. Rowland, 113

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F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied

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appointment of counsel despite fact that pro se prisoner “may well have fared better-particularly in the

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realm of discovery and the securing of expert testimony.”) Circumstances common to most prisoners,

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such as lack of funds, legal education and limited law library access and other resources, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of counsel.

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Accordingly, Plaintiff’s eighth motion for appointment of counsel is DENIED.

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IT IS SO ORDERED.

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Dated:

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December 14, 2016
UNITED STATES MAGISTRATE JUDGE

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