Vickers v. Maldonado et al

Filing 24

ORDER Denying Plaintiff's Second Motion For Appointment Of Counsel (ECF No. 23 ), signed by Magistrate Judge Stanley A. Boone on 3/28/2016. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEREMIAH VICKERS,

Case No. 1:14-cv-02039-SAB-PC

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ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF
COUNSEL

Plaintiff,
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v.
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SGT. MALDONADO, et al.,

(ECF NO. 23)

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Defendants.
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Plaintiff Jeremiah Vickers is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.

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On March 25, 2016, Plaintiff filed a motion for the appointment of counsel. (ECF No.
23.) Plaintiff’s first motion for appointment of counsel was denied on February 4, 2015. (ECF
No. 7)
Plaintiff is advised that there is no constitutional right to appointed counsel in this action,
Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any
attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States
District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain
exceptional circumstances the court may request the voluntary assistance of counsel pursuant to
section 195(e)(1). Rand, 113 F.3d at 1525.
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
“exceptional circumstances exist, the district court must evaluate both the likelihood of success
on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court has considered Plaintiff’s moving papers, but does not find

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2 the required exceptional circumstances. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987);
3 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff is proceeding on a claim of
4 excessive force and the legal issues present in this action are not complex, and Plaintiff has
5 thoroughly set forth his arguments in the complaint filed in this action. Plaintiff argues that it is
6 difficult for him to litigate this action because of his incarceration and that if this case goes to
7 trial, there will be conflicting testimony. In forma pauperis status alone does not alone entitle
8 Plaintiff to appointed counsel. That it is difficult for Plaintiff to litigate this case because of his
9 incarceration does not constitute exceptional circumstances.
While a pro se litigant may be setter served with the assistance of counsel, so long as a

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11 pro se litigant, such as Plaintiff in this instance, is able to “articulate his claims against the
12 relative complexity of the matter,” the “exceptional circumstances” which might require the
13 appointment of counsel do not exist. Rand, 113 F.3d at 1525 (finding no abuse of discretion
14 under 28 U.S.C. §1915(e) when district court denied appointment of counsel despite fact that pro
15 se prisoner “may well have fared better – particularly in the realm of discovery and the securing
16 of expert testimony.”) Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for the
17 appointment of counsel is DENIED.
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IT IS SO ORDERED.

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March 28, 2016
UNITED STATES MAGISTRATE JUDGE

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