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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN GRIFFITHS,

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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.

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Plaintiff Steven Griffiths (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is

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Plaintiff’s motion for appointment of counsel, filed July 19, 2017. (ECF No. 27.)

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Plaintiff states that he is unable to afford counsel, his imprisonment will limit his ability to

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litigate because he has limited access to the law library and limited knowledge of the law, counsel

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would better enable Plaintiff to present evidence and cross examine witnesses at trial, and

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Plaintiff has made repeated efforts to obtain a lawyer. (Id.)

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954

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n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28

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U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298

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(1989). However, in certain exceptional circumstances the court may request the voluntary
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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

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, a district court must evaluate both the likelihood of success on

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

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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The Court has considered Plaintiff’s motion for the appointment of counsel, but does not

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find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed

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in the law and that he has made serious allegations which, if proved, would entitle him to relief,

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his case is not exceptional. This Court is faced with similar cases involving claims of failure to

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protect filed by prisoners proceeding pro se and in forma pauperis almost daily. These prisoners

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also must conduct legal research and prosecute claims without the assistance of counsel.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Although the Court has determined Plaintiff has stated

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some claims which may proceed in litigation, it has not determined that those claims have a

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likelihood of ultimately being successful. Also, based on a review of the limited record in this

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case, the Court does not find that Plaintiff cannot adequately articulate his claims.

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel (ECF No. 27)
is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 24, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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