Wyatt v. Sundaram

Filing 44

ORDER DENYING, Without Prejudice, 43 Plaintiff's Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 2/7/2017. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY WYATT, 12 Plaintiff, 13 14 v. DR. SUNDARAM, 15 Defendant. 16 ORDER DENYING, WITHOUT PREJUDICE, PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL [ECF No. 43] pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s motion for appointment of counsel, filed February 6, 19 20 Case No.: 1:15-cv-00895-DAD-SAB (PC) Plaintiff Ricky Wyatt is appearing pro se and in forma pauperis in this civil rights action 17 18 ) ) ) ) ) ) ) ) ) ) 2017. 21 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 23 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 24 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 25 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 26 1525. 27 /// 28 /// 1 Without a reasonable method of securing and compensating counsel, the court will seek 1 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 4 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 legal issues involved.” Id. (internal quotation marks and citations omitted). This case is proceeding on Plaintiff’s claim of deliberate indifference against Defendant Dr. 6 7 Sundaram. The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s 8 likelihood of success on the merits and the ability of the Plaintiff to articulate his claims pro se in light 9 of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 10 Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most 11 prisoners, such as lack of legal education and limited law library access, do not establish exceptional 12 circumstances that would warrant a request for voluntary assistance of counsel. While a pro se litigant 13 may be better served with the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this 14 instance, is able to “articulate his claims against the relative complexity of the matter,” the 15 “exceptional circumstances” which might require the appointment of counsel do not exist. Rand v. 16 Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district 17 court denied appointment of counsel despite fact that pro se prisoner “may well have fared better- 18 particularly in the realm of discovery and the securing of expert testimony.”) The Court finds that 19 Plaintiff’s bare claim that he cannot under the complexities of the case and deposition process, are not 20 exceptional circumstances warranting the appointment of counsel at this time. Accordingly, Plaintiff 21 motion for appointment of counsel is DENIED, without prejudice. 22 23 IT IS SO ORDERED. 24 Dated: 25 February 7, 2017 UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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