Ricks v. Kamena et al

Filing 6

ORDER Denying 3 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 05/11/2015. (Flores, E)

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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,

1:15-cv-00715-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 3)

Defendant.

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

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action pursuant to 42 U.S.C. § 1983. On May 8, 2015, Plaintiff initiated this action. On the same

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date, Plaintiff filed the instant motion seeking the appointment of counsel.

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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

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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).

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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 is no longer housed where the

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incident took place, he is severely mentally and physically disabled, the case will likely involve

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conflicting testimony and he has made repeated efforts to obtain a lawyer without success. (ECF

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No. 3.) The Court has considered Plaintiff’s moving papers, but does not find the required

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exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the law and

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that he has made serious allegations which, if proved, would entitle him to relief, his case is not

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exceptional. This Court is faced with similar cases almost daily from indigent prisoners.

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Additionally, Plaintiff’s assertions of severe mental and physical disabilities are unsupported by

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any evidence in the record. 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.
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

May 11, 2015

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UNITED STATES MAGISTRATE JUDGE

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A. McAuliffe

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