Estrada v. Macias et al

Filing 52

ORDER DENYING, Without Prejudice, Plaintiff's Second 45 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 8/1/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID ESTRADA,

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Plaintiff,

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v.
TERESA MACIS, et al.,

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Defendants.

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Case No.: 1:15-cv-01292-AWI-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S SECOND MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 45]

Plaintiff David Estrada is appearing pro se in this civil rights action pursuant to 42 U.S.C. §

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1983.
On July 11, 2016, Plaintiff filed a second motion for the appointment of counsel. There is no

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constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th

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Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 28 U.S.C. §

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1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296,

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298 (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.

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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).
In the present case, the Court does find that neither the interests of justice nor exceptional

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circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff is proceeding on a claim

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of deliberate indifference to a serious medical need and the legal issues present in this action are not

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complex, and Plaintiff has thoroughly set forth his allegations in the complaint.
While a pro se litigant may be better served with the assistance of counsel, so long as a pro se

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litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative

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complexity of the matter,” the “exceptional circumstances” which might require the appointment of

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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28

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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner

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“may well have fared better-particularly in the realm of discovery and the securing of expert

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testimony.”) Based on the record in this case, Plaintiff is able to articulate his claims and litigate this

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action. Circumstances common to most prisoners, such as lack of financial resources, lack of legal

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education and limited law library access, do not establish exceptional circumstances that would

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warrant a request for voluntary assistance of counsel. Accordingly, Plaintiff’s second motion for

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appointment of counsel is DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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August 1, 2016
UNITED STATES MAGISTRATE JUDGE

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