Griffiths v. Tolson et al

Filing 36

ORDER DENYING 35 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 10/4/2017. (Sant Agata, S)

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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. 35)
K. RAMIREZ,
Defendant.

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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 second motion for appointment of counsel, filed October 2, 2017. (ECF No. 35.)

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In support of his motion, Plaintiff states that he has received the Court’s September 15,

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2017 Discovery and Scheduling Order, and he does not possess the necessary skills to meet the

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burden of discovery requests. Plaintiff states that he has a limited education, reading skills, and

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vision, and has been dependent on other inmates to do his legal work. He cannot secure any other

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inmates to conduct discovery. Plaintiff further states that his imprisonment will limit his ability

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to litigate because he has no access to the law library and limited knowledge of the law. Plaintiff

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is unable to afford counsel that would better enable Plaintiff to present evidence and cross

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examine witnesses at trial, and Plaintiff has made repeated efforts to obtain a lawyer. (Id.)

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As Plaintiff was previously informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to
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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.

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of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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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, 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 again

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

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well versed in the law and that he has made serious allegations which, if proved, would entitle

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him to relief, his case is not exceptional. This Court is faced with similar cases involving claims

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of failure to protect filed by prisoners proceeding pro se and in forma pauperis almost daily.

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These prisoners also must conduct discovery, perform legal research, and prosecute claims

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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 second motion for the appointment of counsel (ECF
No. 35) is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 4, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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