Thomas v. Davey et al

Filing 24

ORDER DENYING Plaintiff's 20 Motion to Appoint Counsel without prejudice, signed by Magistrate Judge Barbara A. McAuliffe on 03/14/2017. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD THOMAS,

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Plaintiff,
v.
DAVE DAVEY, et al.,

1:16-cv-00925-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
WITHOUT PREJUDICE
(ECF No. 20)

Defendants.

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Plaintiff Edward Thomas (“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. Currently before the Court is

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Plaintiff’s motion for the appointment of counsel filed on March 1, 2017. In support of his

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motion, Plaintiff explains that he is incarcerated, has limited education and experience and is

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without funds to hire counsel, pay costs or fund experts. Plaintiff requests counsel so that his

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interests will be protected and he will be afforded due process of law based on the complexity of
issues. Plaintiff asserts that his ability to marshal evidence and interview witnesses is limited
based on his incarceration. Plaintiff also requests counsel so that counsel may prepare for an
evidentiary hearing and/or requests for discovery.

He asserts that this case may require

depositions, extensive documentary evidence or access to witnesses. Plaintiff believes that he has
set forth a colorable claim for relief. (ECF No. 20.)
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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. Without a reasonable method of

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securing and compensating counsel, the Court will seek volunteer counsel only in the most

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serious and exceptional cases. In determining whether “exceptional circumstances exist, the

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district court must evaluate both the likelihood of success on the merits [and] the ability of the

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[plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.”

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Id. (internal quotation marks and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances, and
Plaintiff has not identified any circumstances warranting appointment of counsel. Even if it is
assumed that Plaintiff is not well versed in the law and that he has made serious allegations
which, if proved, would entitle him to relief, his case is not exceptional. This Court is faced with
similar cases almost daily from indigent prisoners proceeding without representation. Further, at
this early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely
to succeed on the merits. Plaintiff has not yet filed an amended complaint pursuant to this
Court’s orders, and there has been no finding that he has stated a cognizable claim for relief.
Additionally, based on a review of the record in this case, the Court does not find that Plaintiff
cannot adequately articulate his claims.
For these reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.

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Dated:

/s/ Barbara

March 14, 2017

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UNITED STATES MAGISTRATE JUDGE

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A. McAuliffe

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