Thomas v. Davey et al

Filing 47

ORDER DENYING Plaintiff's 46 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 11/17/2017. (Sant Agata, 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,

Case No. 1:16-cv-00925-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL

v.
(ECF No. 46)
DAVE DAVEY, et al.,
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 June 22, 2017, the Court dismissed Plaintiff’s second amended complaint with leave to

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amend. (ECF No. 33.) On November 16, 2017, Plaintiff filed a third amended complaint and the

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instant motion to appoint counsel. (ECF Nos. 45, 46.) Plaintiff previously filed motions to

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appoint counsel on March 1, 2017, (ECF No. 20), and March 27, 2017, (ECF No. 29). Both of

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these motions were denied, as the Court found that this matter did not present exceptional

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circumstances. (ECF Nos. 24, 32.)

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The instant motion appears to be a photocopy of Plaintiff’s prior motions to appoint

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counsel. Plaintiff again explains that he is incarcerated, has limited education and experience and

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is 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
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issues. Plaintiff asserts that his ability to marshal evidence and interview witnesses is limited

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based on his incarceration. Plaintiff also requests counsel so that counsel may prepare for an

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evidentiary hearing and/or requests for discovery. He asserts that this case may require

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depositions, extensive documentary evidence or access to witnesses. Plaintiff believes that he has

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set forth a colorable claim for relief. (ECF Nos. 24, 32, 46.)

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As Plaintiff was previously informed, he does not have a constitutional right to appointed

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

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), 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. U.S. Dist. Court for the S. Dist.

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

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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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, a district court must evaluate both the likelihood of success on

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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 has considered Plaintiff’s renewed motion for the appointment of counsel, but

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again does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is

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not well versed in the law and that he has made serious allegations which, if proved, would entitle

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him to relief, his case is not exceptional. This Court is faced with similar cases involving claims

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of failure to protect filed by prisoners proceeding pro se and in forma pauperis almost daily.

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These prisoners also must conduct legal research and prosecute claims without the assistance of

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counsel.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Plaintiff has just filed a third amended complaint,

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which will be screened in due course. The Court has not yet found that Plaintiff has stated a

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cognizable claim for relief. Also, based on a review of the limited record in this case, the Court
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does not find that Plaintiff cannot adequately articulate his claims.

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Accordingly, Plaintiff’s motion for the appointment of counsel (ECF No. 46) is HEREBY

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DENIED, without prejudice. Any further requests for appointment of counsel on similar grounds

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will summarily be denied.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 17, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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