Crew v. Commissioner of Department of Corrections and Rehabilitation

Filing 9

ORDER Denying 4 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 4/27/16. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:16-cv-00590-BAM (PC)

DAVID CREW,
Plaintiff,
v.
COMMISSIONER OF DEPARTMENT
OF CORRECTIONS AND
REHABILITATION,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 4)

Defendant.

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Plaintiff David Crew (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On April 25, 2016, the same day

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he filed this action, Plaintiff filed a motion seeking the appointment of counsel. (ECF No. 4.) He

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argues that he requires appointed counsel because he does not have enough income to employ his

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own counsel, his case is complex, he has limited access to legal research materials, and he is a

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layman with a limited formal education and no education in the law.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for

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the Southern District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in
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certain exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to section 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 of

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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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In the present case, the court does not find the required exceptional circumstances. Even if

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it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with

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similar cases alleging deliberate indifference to serious medical needs almost daily. Further, at

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this early stage in the proceedings, the court cannot make a determination that Plaintiff is likely to

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succeed on the merits, and based on a review of the record in this case, the court does not find

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that Plaintiff cannot adequately articulate his claims. Id.

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For the foregoing reasons, Plaintiff=s motion for the appointment of counsel (ECF No. 4)
is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
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Dated:

/s/ Barbara

April 27, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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