King v. Holland et al

Filing 54

ORDER DENYING Plaintiff's Fourth 52 Motion to Appoint Counsel Without Prejudice, signed by Magistrate Judge Barbara A. McAuliffe on 8/21/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RASHAD KING,

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Plaintiff,

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Case No. 1:15-cv-01885-DAD-BAM (PC)

v.
S. HOLLAND, et al.,

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ORDER DENYING PLAINTIFF’S FOURTH
MOTION FOR APPOINTMENT OF
COUNSEL WITHOUT PREJUDICE
(ECF No. 52)

Defendants.

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Plaintiff Rashad King (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action under 42 U.S.C. § 1983. This action currently proceeds on

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Plaintiff’s Eighth Amendment claims against Defendants Duncan, Holland, and Tingley.1
On July 8, 2016, Plaintiff filed a motion for appointment of counsel, asserting that he is an

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indigent state prisoner with limited access to legal materials and no meaningful attorney access,

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other than some limited access to “jailhouse lawyers.” He also asserted that he is a layman at the

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law, with a limited education. (ECF No. 10.) The Court denied his motion on July 12, 2016,

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finding that the matter did not present exceptional circumstances. (ECF No. 11.)

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Plaintiff filed second and third motions for appointment of counsel on December 27,

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2016, and April 10, 2017. (ECF Nos. 19, 34.) The Court denied these motions, finding again that

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the matter did not present exceptional circumstances. (ECF Nos. 20, 36.)

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Defendant Solis was dismissed from this action on August 9, 2017. (ECF No. 51.)

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On August 17, 2017, Plaintiff filed a fourth motion for appointment of counsel. (ECF No.
52.)

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I.

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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), reversed 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 under 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of

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Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in certain exceptional

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circumstances, the Court may request the voluntary assistance of counsel under section

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Legal Standard

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

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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.” Id. (internal quotation marks and citations omitted).

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II.

Discussion

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In the instant motion, Plaintiff requests the appointment of counsel for the following

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reasons: (1) Plaintiff is unable to afford counsel; (2) Plaintiff’s imprisonment limits his ability to

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litigate; (3) a trial in this case will involve conflicting testimony; and (4) Plaintiff has made

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repeated efforts to obtain a lawyer. (ECF No. 52.)
The Court has considered Plaintiff’s renewed motion for the appointment of counsel, but

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again does not find the required exceptional circumstances. As previously indicated, Plaintiff’s

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indigent circumstances, the complexity of the case, and Plaintiff’s limited knowledge of the law

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do not make his case exceptional. This Court is faced with similar cases, particularly those

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involving allegations of excessive force, almost daily. Plaintiff has provided no new

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considerations or changed circumstances indicating that he is unable to proceed in this matter

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without the assistance of counsel.

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Moreover, at this early stage in the proceedings, the Court cannot make a determination

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that Plaintiff is likely to succeed on the merits, and upon reviewing the record, the Court does not

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find that Plaintiff cannot adequately articulate his claims. Rand, 113 F.3d at 1525. However, if

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Plaintiff requires additional time to comply with relevant deadlines and court orders due to his

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limited education, complexities of the case or other circumstances, then he may seek appropriate

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extensions of time.

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Accordingly, Plaintiff’s motion for appointment of counsel (ECF No. 52) is HEREBY

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DENIED, without prejudice. Any further requests for appointment of counsel on similar grounds

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will summarily be denied.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 21, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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