Rhodes v. Fresno County, et al.

Filing 77

ORDER DENYING, WITHOUT PREJUDICE, Plaintiff's Second 75 Motion to Appoint Counsel, signed by Magistrate Judge Stanley A. Boone on 01/10/18. (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PERCY LEE RHODES, 12 Plaintiff, 13 v. 14 FRESNO COUNTY, et al., 15 Defendants. 16 ORDER DENYING, WITHOUT PREJUDICE, PLAINTIFF’S SECOND MOTION FOR APPOINTMENT OF COUNSEL [ECF No. 75] pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s second motion for appointment of counsel, filed 19 20 Case No. 1:15-cv-01714-DAD-SAB (PC) Plaintiff Percy Lee Rhodes is appearing pro se and in forma pauperis in this civil rights action 17 18 ) ) ) ) ) ) ) ) ) ) January 5, 2018. As Plaintiff is aware there is no constitutional right to appointed counsel in this action, Rand v. 21 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 23 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 24 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 25 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 26 1525. 27 /// 28 /// 1 Without a reasonable method of securing and compensating counsel, the court will seek 1 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 4 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 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 6 7 circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th 8 Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Although Plaintiff submits 9 evidence that he suffers from post-traumatic stress disorder, the evidence demonstrates that he is 10 receiving ongoing treatment for such condition. While a pro se litigant may be better served with the 11 assistance of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is able to “articulate 12 his claims against the relative complexity of the matter,” the “exceptional circumstances” which might 13 require the appointment of counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse 14 of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact 15 that pro se prisoner “may well have fared better-particularly in the realm of discovery and the securing 16 of expert testimony.”) In addition, circumstances common to most prisoners, such as lack of legal 17 education and limited law library access, do not establish exceptional circumstances that would 18 warrant a request for voluntary assistance of counsel. A review of the record demonstrates that 19 Plaintiff is capable of litigating this action and has done so to date. 20 motion for appointment of counsel is DENIED, without prejudice. Accordingly, Plaintiff second 21 22 IT IS SO ORDERED. 23 Dated: 24 January 10, 2018 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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