Asberry v. Biter

Filing 181

ORDER DENYING 172 Motion to Appoint Counsel, signed by Magistrate Judge Jeremy D. Peterson on 1/14/2020. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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Plaintiff,

Case No. 1:16-cv-01741-LJO-JDP
ORDER DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL

v.
ECF No. 172
C. RELEVANTE, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding without counsel, moves for counsel for the third time

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in this case. ECF No. 172. Plaintiff does not have a constitutional right to appointed counsel in

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this action, see Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the

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authority to require an attorney to represent plaintiff. See Mallard v. U.S. District Court for the

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Southern District of Iowa, 490 U.S. 296, 298 (1989). The court may request the voluntary

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assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to

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represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. However, without a

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means to compensate counsel, the court will seek volunteer counsel only in exceptional

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circumstances. In determining whether such circumstances exist, “the district court must evaluate

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both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his

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claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525

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(internal quotation marks and citations omitted).
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The court cannot conclude that exceptional circumstances requiring the appointment of

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counsel are present here. The allegations in the complaint are not exceptionally complicated.

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Based on a review of the record, it is not apparent that plaintiff is unable to articulate his claims

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adequately. Further, plaintiff has not demonstrated that he is likely to succeed on the merits.

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The court may revisit this issue at a later stage of the proceedings if the interests of justice

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so require. If plaintiff later renews his request for counsel, he should provide a detailed

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explanation of the circumstances that he believes justify appointment of counsel.

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IT IS SO ORDERED.

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Dated:
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January 14, 2020
UNITED STATES MAGISTRATE JUDGE

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No. 204.

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