Underwood v. Cox et al

Filing 13

ORDER DENYING Plaintiff's Motion for Appointment of Counsel 11 , signed by Magistrate Judge Erica P. Grosjean on 2/14/17: 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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ANDRE UNDERWOOD,
Plaintiff,

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v.

1:16-cv-00597-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF PRO BONO
COUNSEL
(ECF NO. 11)

R. COX, et al.,
Defendants.

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Andre Underwood (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to 42 U.S.C. § 1983. On February 13, 2017, Plaintiff filed

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a request for appointment of pro bono counsel. (ECF No. 11).

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According to Plaintiff, he needs counsel appointed because he cannot afford counsel, he

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has very limited access to the law library, the prison he is located at is on lock down status and his

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movement is very limited, the case is complex, and having counsel will “better enable” Plaintiff

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to present evidence and cross-examine witnesses at trial.

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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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952

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(9th Cir. 1998), 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 Iowa,

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

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

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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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Aexceptional 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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The Court will not order appointment of pro bono counsel at this time. At this early stage in

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the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the

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merits. No defendants have been served. Additionally, while the Court has screened Plaintiff’s First

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Amended Complaint and found a cognizable claim (ECF No. 10), Plaintiff has not yet informed the

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Court whether he wishes to proceed only on the cognizable claim or if he will be filing a Second

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Amended Complaint.

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Moreover, based on the record in this case, it appears that Plaintiff can adequately articulate

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his claims and respond to court orders. Plaintiff is advised that he is not precluded from renewing the

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motion for appointment of pro bono counsel at a later stage of the proceedings.

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For the foregoing reasons, Plaintiff’s motion for appointment of pro bono counsel is DENIED
without prejudice.

IT IS SO ORDERED.

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Dated:

February 14, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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