Rhodes v. Fresno County, et al.

Filing 27

ORDER denying 26 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 10/28/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERCY LEE RHODES,

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Plaintiff,

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v.

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FRESNO COUNTY, et al.,

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Defendants.

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Case No.: 1:15-cv-01714-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE
[ECF No. 26]

Plaintiff Percy Lee Rhodes is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of

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the United States Magistrate Judge on November 23, 2015. Local Rule 302.

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Currently before the Court is Plaintiff’s motion for appointment of counsel, filed October 27,

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2016. Plaintiff requests appointment of counsel because he is indigent, has limited access to the law

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library, and the complexity of the action.

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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), and the court cannot require any attorney to represent

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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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

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may 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, 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).
The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood

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of success on 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. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish exceptional

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circumstances that would warrant a request for voluntary assistance of counsel. Furthermore, the fact

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that Plaintiff is proceeding in forma pauperis does not entitle him to counsel. While a prose litigant

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may be better served with the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this

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instance, is able to “articulate his claims against the relative complexity of the matter,” the

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“exceptional circumstances” which might require the appointment of counsel do not exist. Rand, 113

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F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied

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appointment of counsel despite fact that pro se prisoner “may well have fared better – particularly in

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the realm of discovery and the security of expert testimony.”) In sum, the Court finds Plaintiff’s

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reasons for requesting appointment of counsel indistinguishable from the reasons asserted by most

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prisoners. Plaintiff filed a second amended complaint on August 17, 2016, which will be screened by

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the Court in due course. 28 U.S.C. § 1915A. Accordingly, Plaintiff’s motion for appointment of

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counsel is be DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

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October 28, 2016
UNITED STATES MAGISTRATE JUDGE

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