McRae v. Dikran et al

Filing 44

ORDER DENYING 42 Motion for Appointment of Counsel signed by Magistrate Judge Gary S. Austin on 3/26/2020. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL SCOTT MCRAE,

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Plaintiff,
v.
BAIRAMIAN DIKRAN, et al.,

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1:16-cv-01066-NONE-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document #42)

Defendants.

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On March 24, 2020, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d

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1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent Plaintiff pursuant

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to 28 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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“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 complexity

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of the legal issues involved.” Id. (internal quotation marks and citations omitted).
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In the present case, Plaintiff argues that he is proceeding in forma pauperis and cannot

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afford counsel. Plaintiff also argues that he has a medical condition, motility issues, limited access

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to the library, and limited knowledge of the law. Further, Plaintiff argues that he will need

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assistance at trial to present evidence and cross-examine witnesses. While these conditions are

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challenging for Plaintiff, they do not make Plaintiff’s case exceptional. At this stage of the

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proceedings, the court cannot find that Plaintiff is likely to succeed on the merits. While the Ninth

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Circuit Court of Appeals found, with respect to Plaintiff’s medical claim, that “[l]iberally construed,

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these allegations “are sufficient to warrant ordering [defendants] to file an answer.” (ECF No. 26

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at 3) citing Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); Toguchi v. Chung, 391 F.3d

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1051, 1057 (9th Cir. 2004), this finding is not a determination that Plaintiff is likely to succeed on

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the merits. The legal issue in this case --whether the defendants were deliberately indifferent to a

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substantial risk of serious harm to Plaintiff’s health -- is not complex. Moreover, based on a review

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of the record in this case, the court finds that Plaintiff can adequately articulate his claims. Thus,

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the court does not find the required exceptional circumstances, and Plaintiff’s motion shall be

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denied without prejudice to renewal of the motion at a later stage of the proceedings.

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

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IT IS SO ORDERED.
Dated:

March 26, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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