Ricks v. Kamena et al

Filing 13

ORDER DENYING 12 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 1/6/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT K. RICKS,

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Plaintiff,
v.
C. KAMENA, et al.,
Defendants.

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1:15-cv-00715-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL FOR
MENTALLY INCAPACITATED
(ECF No. 12)

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Plaintiff Scott K. Ricks (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. On January 4, 2016, Plaintiff filed the instant motion

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seeking the appointment of counsel.

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As Plaintiff has been previously informed, he does not have a constitutional right to

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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the

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court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1).

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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109

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S. Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request

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the voluntary assistance of counsel 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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Here, Plaintiff asserts that appointment of counsel is warranted because he is unable to

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afford counsel; his imprisonment will limit his ability to litigate; he believes the case is complex

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and he has never litigated a case before; he is no longer housed where the incident took place,

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and is currently housed at Atascadero State Hospital; he is severely mentally and physically

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disabled; the case will likely involve conflicting testimony; and he has made repeated efforts to

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obtain a lawyer without success. (ECF No. 12.) The Court has considered Plaintiff’s moving

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papers, but does not find the required exceptional circumstances. Even if it is assumed that

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Plaintiff is not well versed in the law and that he has made serious allegations which, if proved,

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would entitle him to relief, his case is not exceptional. This Court is faced with similar cases

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almost daily from indigent prisoners. Additionally, Plaintiff’s assertions of severe mental and

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physical disabilities are unsupported by any evidence in the record. Further, at this early stage in

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the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the

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merits, and based on a review of the record in this case, the Court does not find that Plaintiff

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cannot adequately articulate his claims.

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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.
Dated:

/s/ Barbara

January 6, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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