Wyatt v. Sundaram

Filing 48

ORDER DENYING, Without Prejudice, 45 Plaintiff's Second Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 4/27/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICKY WYATT,

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Plaintiff,

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v.
DR. SUNDARAM,

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Defendant.

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ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S SECOND MOTION FOR
APPOINTMENT
OF COUNSEL
[ECF No. 45]

pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s second motion for the appointment of counsel, filed

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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

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April 26, 2017.
As Plaintiff is aware, he does not have a constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the

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Southern District of Iowa, 490 U.S. 296, 298 (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, 113

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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 on the

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted).
This case is proceeding on Plaintiff’s claim of deliberate indifference against Defendant Dr.

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Sundaram. The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s

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likelihood of success on the merits and the ability of the Plaintiff to articulate his claims pro se in light

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of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish exceptional

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circumstances that would warrant a request for voluntary assistance of counsel. While a pro se litigant

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may be better served with the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this

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instance, is able to “articulate his claims against the relative complexity of the matter,” the

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“exceptional circumstances” which might require the appointment of counsel do not exist. Rand v.

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Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district

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court denied appointment of counsel despite fact that pro se prisoner “may well have fared better-

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particularly in the realm of discovery and the securing of expert testimony.”) Contrary to Plaintiff’s

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claim this case is not at the trial stage as Defendant filed a motion for summary judgment on April 26,

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2017, the same day the instant motion was filed. Based on the record in this case, the Court does not

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find exceptional circumstances to warrant appointment of counsel. Accordingly, Plaintiff second

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motion for appointment of counsel is DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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April 27, 2017
UNITED STATES MAGISTRATE JUDGE

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