Thomas v. Davey et al

Filing 32

ORDER Denying 29 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 06/05/2017. (Flores, E)

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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. 29)

Defendants.

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Plaintiff Edward Thomas (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

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On March 1, 2017, Plaintiff filed a motion for the appointment of counsel, which the

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Court denied without prejudice on March 14, 2017. (ECF Nos. 20, 24.) Currently before the

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Court is Plaintiff’s second motion for the appointment of counsel filed on March 27, 2017. As

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with his prior request, Plaintiff explains that he is incarcerated and is without funds to hire

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counsel, pay costs or fund experts. Plaintiff requests counsel so that his interests will be protected

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and he will be afforded due process of law based on the complexity of issues. Plaintiff asserts

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that his ability to marshal evidence and interview witnesses is limited based on his incarceration,

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and that this case may require depositions, extensive documentary evidence or access to

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witnesses. Plaintiff believes that he has set forth a colorable claim for relief. (ECF No. 29.)
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As has been explained, Plaintiff does not have a constitutional right to appointed counsel

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in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other

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grounds, 154 F.3d 952 n.1 (9th Cir. 1998), and the Court cannot require an attorney to represent

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

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Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain

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exceptional circumstances, the Court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and

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

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exceptional cases. In determining whether “exceptional circumstances exist, the district court

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must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to

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articulate 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 Court does not find the required exceptional circumstances, and

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Plaintiff has not identified any circumstances warranting appointment of counsel. Even if it is

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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 almost daily from indigent prisoners proceeding without representation. Further, at

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

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to succeed on the merits. Plaintiff’s second amended complaint has not been screened, and there

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has been no determination that Plaintiff has set forth a cognizable claim for relief. 1 More

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importantly, based on a review of the record in this case, the Court does not find that Plaintiff

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cannot adequately articulate his claims. For these reasons, Plaintiff=s motion for the appointment

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of counsel is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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June 5, 2017

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Plaintiff’s second amended complaint, filed on March 27, 2017, will be screened in due course.
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