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)

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