Ware v. Bitter et al

Filing 15

ORDER DENYING, WITHOUT PREJUDICE, Plaintiff's 13 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 10/13/2016. (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARTIN WARE, 12 Plaintiff, 13 14 v. M. BITTER, et al., 15 Defendants. 16 ORDER DENYING, WITHOUT PREJUDICE, PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL [ECF No. 13] pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s motion for appointment of counsel and motion to 19 20 Case No.: 1:16-cv-01302-DAD-SAB (PC) Plaintiff Martin Ware is appearing pro se and in forma pauperis in this civil rights action 17 18 ) ) ) ) ) ) ) ) ) ) amend the “prayer for relief”, filed September 16, 2016. 21 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 23 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 24 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 25 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 26 1525. 27 28 Without a reasonable method of securing and compensating counsel, the court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether 1 1 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 2 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 3 legal issues involved.” Id. (internal quotation marks and citations omitted). The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood 4 5 of success on the merits and the ability of the Plaintiff to articulate his claims pro se in light of the 6 complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 7 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most 8 prisoners, such as lack of legal education and limited law library access, do not establish exceptional 9 circumstances that would warrant a request for voluntary assistance of counsel. In the present case, 10 the Court has yet to screen Plaintiff’s complaint and based on a cursory review of the complaint, the 11 Court does not find the required exceptional circumstances. Accordingly, Plaintiff’s motion for 12 appointment of counsel will be DENIED without prejudice. 13 14 IT IS SO ORDERED. 15 Dated: 16 October 13, 2016 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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