Thornton v. Grissom et al

Filing 33

ORDER DENYING Motion for Appointment of Counsel 32 , signed by Magistrate Judge Michael J. Seng on 4/4/17: Motion is DENIED without prejudice. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SIMON THORNTON,

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Plaintiff,
v.
D. GRISSOM, et al.,

1:16-cv-00498-AWI-MJS (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 32)

Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. §1983. Pending now is Plaintiff’s fifth request for the

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appointment of counsel. For the reasons set forth here, this motion will be denied.

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As Plaintiff has previously been informed, he does not have a constitutional right

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to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.

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1997), and the court cannot require an attorney to represent plaintiff pursuant to 28

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U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of

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

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court may request the voluntary assistance of counsel pursuant to section 1915(e)(1).

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Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court
will seek volunteer counsel only in the most serious and exceptional cases. In
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determining whether Aexceptional circumstances exist, the district court must evaluate

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

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his claims pro se in light of the complexity of the legal issues involved.@ Id. (internal

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quotation marks and citations omitted).

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In the present case, the undersigned again fails to find the required exceptional

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circumstances. Even if it is assumed, as Plaintiff continues to claim, that he is not well

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versed in the law and that he has made serious allegations which, if proved, would

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entitle him to relief, his case is not exceptional. This court is faced with similar cases

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almost daily. Further, at this early stage in the proceedings, the court cannot make a

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determination that plaintiff is likely to succeed on the merits, and based on a review of

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the record in this case, the court does not find that plaintiff cannot adequately articulate

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his claims. Id.

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In addition, Plaintiff again asserts mental incompetence, but still fails to support

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his claim with recent mental health records, relying instead on over one hundred pages

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of records dating from 2003, 2005, 2010, and 2011. Even if the records adequately show

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that Plaintiff’s mental health suffered during those years, he has not shown that those

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effects continue to the present and/or are not controlled by medication. Moreover, he

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has demonstrated sufficient writing ability and legal knowledge to articulate his claims.

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See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).

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For the foregoing reasons, Plaintiff=s motion for the appointment of counsel (ECF
No. 32) is HEREBY DENIED without prejudice.

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IT IS SO ORDERED.
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Dated:

April 4, 2017

/s/

UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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