Franks v. Stanislaus County Sheriff's Department

Filing 27

ORDER DENYING Plaintiff's 26 Motion to Appoint Counsel, signed by Magistrate Judge Erica P. Grosjean on 12/8/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TOM MARK FRANKS,

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Plaintiff,
vs.
SERGEANT KIRK, et al.

Case No. 1:15-cv-00401-EPG-PC
ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL
(ECF No. 26)

Defendant.

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Plaintiff Tom Mark Franks is proceeding pro se and in forma pauperis in this action

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alleging violations of 42 U.S.C. § 1983. On December 5, 2016, Plaintiff filed a motion for the

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appointment of counsel. (ECF No. 26.)

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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

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

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525. The Court thus construes Plaintiff’s motion as a motion to

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request the voluntary assistance of counsel.

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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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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success

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of 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 argues that exceptional circumstances exist because he is currently incarcerated

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and thus has limited ability to litigate. (ECF No. 26.) He also contends that a trial in this case

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“will likely involve conflicting testimony” and that an attorney would assist him in presenting

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evidence.

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Plaintiff’s case does not demonstrate the exceptional circumstances required for the

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appointment of counsel. The Court oversees dozens of cases involving incarcerated individuals

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and Plaintiff’s claims are no more complex than any other claim brought by an incarcerated

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plaintiff. Nor is a trial concerning conflicting testimony unique or exceptional—only cases with

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significant disputes of fact, after all, should proceed to trial.

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Plaintiff=s motion to request the voluntary assistance of counsel (ECF No. 26) is DENIED
without prejudice.

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IT IS SO ORDERED.
Dated:

December 8, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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