Berry v. Yosemite Community College District et al

Filing 37

ORDER DENYING plaintiff's motion for appointment of counsel, document 36 . Order signed by Magistrate Judge Erica P. Grosjean on 7/16/2018. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:16-cv-00411-LJO-EPG

DEBRA BERRY,
Plaintiff,
v.

(ECF No. 36)

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

YOSEMITE COMMUNITY COLLEGE
DISTRICT, a Public Educational
Institution, Junior College, et al.,
Defendants.

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Debra Berry (“Plaintiff”) is proceeding pro se and in forma pauperis with this civil rights

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action pursuant to 42 U.S.C. § 1983 and Title VI of the Civil Rights Act of 1964, 42 U.S.C. §

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2000d. Plaintiff filed the Complaint commencing this action on March 25, 2016. (ECF No. 1).

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This action now proceeds on the following claims: (1) Fourteenth Amendment Equal Protection

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against Defendants Jordan, Bambrosia, Carol, McCarthy, and Marks, in their individual capacities

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and official capacities; (2) First Amendment retaliation against Defendant Marks in his individual

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capacity; (3) intentional discrimination in violation of Title VI against Yosemite Community

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College District (“YCCD”) and Modesto Junior College (“MJC”); and (4) retaliation in violation

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of Title VI against YCCD and MJC. (ECF Nos. 10, 11).

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On July 13, 2018, Plaintiff filed a motion for appointment of counsel. (ECF No. 36).

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Plaintiff contends that appointment of counsel is necessary in this action because of (1) the nature

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of the civil constitutional violations, (2) the complexity of the civil constitutional violations, and

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(3) the expectation of a settlement conference. Id.

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Pursuant to 28 U.S.C. § 1915(e)(1), the Court may appoint counsel to an indigent party in

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a civil case. However, the appointment of counsel is not a constitutional right, and the Court

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cannot require an attorney to represent a party. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th

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Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 (9th Cir. 1998); Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). Without a

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reasonable method of securing and compensating counsel, the Court will seek the voluntary

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assistance of counsel only in the most serious and exceptional circumstances. Rand, 113 F.3d at

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1525. In determining whether exceptional circumstances exist, “a district court must evaluate

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both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his

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claims pro se in light of the complexity of the legal issues involved.” Id. (internal quotation

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marks and citations omitted).

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Here, despite the complexity of the legal issues involved in this action, Plaintiff has

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displayed the ability to articulate her claims. Moreover, the Court is unable to evaluate Plaintiff’s

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likelihood of success on the merits at this juncture. The non-expert discovery deadline in this

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action is November 16, 2018, (ECF No. 28), and the parties are in the process of exchanging

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discovery. In addition, a settlement conference has not been scheduled in this action. (ECF No.

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35). Therefore, the Court declines presently to seek the voluntary assistance of counsel. Plaintiff

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may, however, request the appointment of counsel at a later time.

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For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for appointment of
counsel is DENIED without prejudice.
IT IS SO ORDERED.
Dated:

July 16, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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