Griffiths v. Tolson et al

Filing 29

ORDER Denying 27 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 07/24/2017. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN GRIFFITHS, 12 13 14 15 Plaintiff, Case No. 1:15-cv-01226-LJO-BAM (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL v. (ECF No. 27) R. TOLSON, et al., Defendants. 16 17 Plaintiff Steven Griffiths (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is 19 Plaintiff’s motion for appointment of counsel, filed July 19, 2017. (ECF No. 27.) 20 Plaintiff states that he is unable to afford counsel, his imprisonment will limit his ability to 21 litigate because he has limited access to the law library and limited knowledge of the law, counsel 22 would better enable Plaintiff to present evidence and cross examine witnesses at trial, and 23 Plaintiff has made repeated efforts to obtain a lawyer. (Id.) 24 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 25 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 26 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 27 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 28 (1989). However, in certain exceptional circumstances the court may request the voluntary 1 1 2 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the Court will seek 3 volunteer counsel only in the most serious and exceptional cases. In determining whether 4 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 5 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 6 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 7 The Court has considered Plaintiff’s motion for the appointment of counsel, but does not 8 find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed 9 in the law and that he has made serious allegations which, if proved, would entitle him to relief, 10 his case is not exceptional. This Court is faced with similar cases involving claims of failure to 11 protect filed by prisoners proceeding pro se and in forma pauperis almost daily. These prisoners 12 also must conduct legal research and prosecute claims without the assistance of counsel. 13 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 14 Plaintiff is likely to succeed on the merits. Although the Court has determined Plaintiff has stated 15 some claims which may proceed in litigation, it has not determined that those claims have a 16 likelihood of ultimately being successful. Also, based on a review of the limited record in this 17 case, the Court does not find that Plaintiff cannot adequately articulate his claims. 18 19 For the foregoing reasons, Plaintiff’s motion for the appointment of counsel (ECF No. 27) is DENIED, without prejudice. 20 21 22 IT IS SO ORDERED. Dated: /s/ Barbara July 24, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

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