Michael Jacobsen v. Pool

Filing 24

ORDER DENYING Motion for Appointment of Counsel 23 , signed by Magistrate Judge Barbara A. McAuliffe on 2/14/2018. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL JACOBSEN,

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Plaintiff,

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Case No. 1:16-cv-01760-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
(ECF No. 23)
POOL,
Defendant.

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Plaintiff Michael Jacobsen (“Plaintiff”) is a county detainee proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this

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action on November 21, 2016. (ECF No. 1.) On September 5, 2017, Plaintiff filed a first

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amended complaint, (ECF No. 16), and on October 5, 2017, Plaintiff lodged a second amended

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complaint, (ECF No. 18). Plaintiff’s complaint has not yet been screened.

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Currently before the Court is Plaintiff’s motion for appointment of counsel, filed February

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9, 2018. (ECF No. 23.) Plaintiff states that this action states a claim for excessive force and his

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complaint has passed the screening process and is now in the discovery phase. Plaintiff states that

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due to his lack of education and experience with the judicial system, he will not be able to

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conduct discovery through the taking of depositions or navigate more complicated discovery

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issues such as motions for sanctions. Plaintiff further argues that he cannot get any discovery

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from Defendant because any requests he attempts get objected to and denied by defense counsel.
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(Id.)

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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. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298

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(1989). However, in certain exceptional circumstances the court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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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

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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).
The Court has considered Plaintiff’s motion for the appointment of counsel, but does not

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find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed

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in the law and that he has made serious allegations which, if proved, would entitle him to relief,

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his case is not exceptional. This Court is faced with similar cases filed by prisoners proceeding

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pro se and in forma pauperis almost daily. These prisoners also must conduct legal research,

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prosecute claims, and conduct discovery without the assistance of 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. It appears that Plaintiff has mistakenly filed this

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motion in the instant action. The filed first amended complaint and lodged second amended

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complaint both allege violations of Plaintiff’s property rights, but do not contain allegations of

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excessive force by Defendant Pool. Moreover, the Court has not screened either of the amended

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complaints, and discovery has not yet opened in this action. Thus, the case does not yet proceed

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on any cognizable claims. 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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For the foregoing reasons, Plaintiff’s motion to appoint counsel (ECF No. 23) is DENIED,
without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 14, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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