Freibaum v. Holland, et al.

Filing 12

ORDER DENYING 11 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 8/4/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALAN FREIBAUM,

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Plaintiff,
v.
K. HOLLAND, et al.,

1:14-cv-01832-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 11)

Defendant.

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On July 31, 2015, Plaintiff Alan Freibaum (“Plaintiff”) filed a motion seeking the

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appointment of counsel. In support of his motion, Plaintiff argues that (1) he is unable to afford

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counsel; (2) his imprisonment will limit his ability to litigate; (3) he has pled a cognizable claim;

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(4) counsel will better prepare his case for trial and try his case, including with regard to possible

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medical experts and cross-examination of witnesses; and (5) he has limited access to a law library

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and a limited knowledge of the law.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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

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

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the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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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

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

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complexity of the 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

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if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with

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similar cases brought by prisoners alleging deliberate indifference to serious medical needs

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almost daily. Further, at this early stage in the proceedings, the court cannot make a

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determination that Plaintiff is likely to succeed on the merits, and based on a review of the record

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in this case, the court does not find that Plaintiff cannot adequately articulate his claims. Id.

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY
DENIED without prejudice.

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IT IS SO ORDERED.
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Dated:

/s/ Barbara

August 4, 2015

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UNITED STATES MAGISTRATE JUDGE

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A. McAuliffe

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