Smith v. Beard, et al.

Filing 9

ORDER DENYING 8 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 5/13/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:15-cv-00451-BAM (PC)

GARY SMITH,
Plaintiff,
v.
JEFFERY BEARD, et al.,

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 8)

Defendants.

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Plaintiff Gary Smith (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 24, 2015. On May

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12, 2015, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff does not have a

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constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525

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(9th Cir. 1997), and the court cannot require an attorney to represent plaintiff pursuant to 28

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U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

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490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (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,

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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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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).
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 almost daily. Further, at this early stage in the proceedings, the Court cannot make

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

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

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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

May 13, 2015

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UNITED STATES MAGISTRATE JUDGE

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A. McAuliffe

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