Johnson v. North Kern State Prison et al

Filing 41

ORDER DENYING 40 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 5/18/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CEDRIC CHESTER JOHNSON,

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Plaintiff,
v.
NORTH KERN STATE PRISON, et al.,

1:16-cv-01371-DAD-BAM (PC)
ORDER DENYING REQUEST FOR
APPOINTMENT OF COUNSEL
(Doc. 40)

Defendants.

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Plaintiff Cedric Chester Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s first amended complaint against Defendants K. Speakman, R. Rocha, M. Jones and M.

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Kennemer for deliberate indifference in violation of the Eighth Amendment.

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On May 17, 2017, plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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asserts that counsel is necessary because Defendants have filed a notice of deposition and request

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for production of documents. Plaintiff further asserts that he is without funds to pay counsel, he

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is not trained in civil matter and only has a seventh grade reading level. (ECF No. 40.)

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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), rev’d in part on other grounds, 154 F.3d 952, 954

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n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 §

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U.S.C.1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490
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U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the

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court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113

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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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Aexceptional circumstances exist, the 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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In the present case, the court does not find the required exceptional circumstances. Even

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if it is 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 Eighth Amendment cases almost daily from prisoners with limited education and no legal

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training. Further, 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, and based on a review of the record in this case, the

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court does not find that plaintiff cannot adequately articulate his claims. Id.

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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.
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Dated:

/s/ Barbara

May 18, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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