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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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 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 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 ) ) ) ) ) ) ) ) ) ) April 26, 2017. As Plaintiff is aware, he does not have a constitutional right to appointed counsel in this action, 21 22 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to 23 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the 24 Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances 25 the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 26 F.3d at 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.”) Contrary to Plaintiff’s 19 claim this case is not at the trial stage as Defendant filed a motion for summary judgment on April 26, 20 2017, the same day the instant motion was filed. Based on the record in this case, the Court does not 21 find exceptional circumstances to warrant appointment of counsel. Accordingly, Plaintiff second 22 motion for appointment of counsel is DENIED, without prejudice. 23 24 IT IS SO ORDERED. 25 Dated: 26 April 27, 2017 UNITED STATES MAGISTRATE JUDGE 27 28 2

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