Berry v. Yosemite Community College District et al

Filing 57

Order DENYING 56 Third Motion for Appointment of Counsel, signed by Magistrate Judge Erica P. Grosjean on 1/15/2019. (Rosales, O.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
Case No. 1:16-cv-00411-LJO-EPG

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ORDER DENYING THIRD MOTION FOR
APPOINTMENT OF COUNSEL

DEBRA BERRY,
Plaintiff,

(ECF No. 56)

v.

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

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Plaintiff argued 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. On July 16, 2018, the Court denied the motion.

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(ECF No. 37).

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On November 5, 2018, Plaintiff filed a second motion for appointment of counsel. (ECF
No. 38). Plaintiff argued that she is being denied access to the courts because she has not been

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appointed pro bono counsel. Id. On November 20, 2018, the court denied the motion for

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appointment of counsel. (ECF No. 43).

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On January 14, 2018, Plaintiff filed a third motion for appointment of counsel, (ECF No.

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56), which is now before the Court. Plaintiff again argues that she is being denied access to the

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courts because she has not been appointed pro bono counsel, and that indigent litigants should be

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appointed pro bono counsel as a matter of right. Id.

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“There is no constitutional right to appointed counsel in a § 1983 action.” Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on reh'g en banc, 154 F.3d 952

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(9th Cir. 1998). Pursuant to 28 U.S.C. § 1915(e)(1), the Court may appoint counsel for indigent

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civil litigants. However, the Court cannot require an attorney to represent an indigent civil

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litigant. Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296,

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298 (1989). Consequently, without a reasonable method of securing and compensating counsel,

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the Court will seek the voluntary assistance of counsel only in the most serious and exceptional

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circumstances. Rand, 113 F.3d at 1525. “To decide whether these exceptional circumstances

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exist, a district court must evaluate both ‘the likelihood of success on the merits [and] the ability

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of the petitioner to articulate his claims pro se in light of the complexity of the legal issues

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

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Here, the Court is unable to evaluate Plaintiff’s likelihood of success on the merits at this

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juncture. Even so, Plaintiff has displayed the ability to articulate her claims and to advocate on

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her own behalf, even considering the complexity of the legal issues involved in this action.

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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:

January 15, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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