Young v. Biter et al

Filing 14

ORDER denying 2 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 3/4/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HOWARD ALLEN YOUNG,

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Plaintiff,

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v.
M.D. BITER, et al,

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1:14-cv-01942-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 2)

Defendant.

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Plaintiff Howard Allen Young (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action on December 5, 2014. Plaintiff also filed a motion for appointment of counsel. (ECF No.

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2.)

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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
volunteer counsel only in the most serious and exceptional cases. In determining whether
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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success on

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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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Plaintiff seeks the appointment of counsel based on psychotropic medication that he is

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taking and its side effects. Plaintiff refers the Court to Exhibit E filed with his complaint. Exhibit

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E consists of an order granting Plaintiff’s motion for appointment of counsel in the matter of

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Young v. Smalls, et al., Case No. 09cv2545 DMS (KSC) dated December 12, 2013. Plaintiff also

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includes a Statewide Psychotropic Medication Consent Form. (ECF No. 1, pp. 145-49.) The

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Court has reviewed the exhibits, but does not find the required exceptional circumstances. First,

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Plaintiff has not identified any specific medication side effects that prevent him from articulating

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his claims in this action. Based on a review of the record in this case, the Court does not find that

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Plaintiff cannot adequately articulate his claims. Second, and unlike the matter of Young v.

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Smalls, et al., at this early stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Id.

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For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED without prejudice.
IT IS SO ORDERED.

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Dated:

/s/ Barbara

March 4, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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