Dell v. Espinoza, et al.

Filing 42

ORDER Denying 33 Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 12/04/2017. (Flores, E)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JONATHAN L. DELL, 11 Plaintiff, 12 13 v. R. ESPINOZA, et al., 14 1:16-cv-01769 DAD-MJS (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF No. 33) Defendant. 15 Plaintiff has filed a motion seeking the appointment of counsel on the grounds 16 17 that he is indigent, his imprisonment will affect his ability to litigate this case, and an 18 attorney would better enable to present evidence and cross-examine witnesses during a 19 trial. 20 Plaintiff does not have a constitutional right to appointed counsel in this action, 21 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an 22 attorney to represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United 23 States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 24 1816 (1989). In certain exceptional circumstances the court may request the voluntary 25 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 26 27 28 However, 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 Aexceptional circumstances exist, the district court must evaluate 1 1 both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate 2 his claims pro se in light of the complexity of the legal issues involved.@ Id. (internal 3 quotation marks and citations omitted). 4 In the present case, the Court does not find the required exceptional 5 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that 6 he has made serious allegations which, if proved, would entitle him to relief, his case is 7 not exceptional. This court is faced with similar cases almost daily. Further, at this 8 stage in the proceedings, the court cannot make a determination that Plaintiff is likely to 9 succeed on the merits, and based on a review of the record in this case, the Court does 10 11 12 not find that Plaintiff cannot adequately articulate his claims. Id. For the foregoing reasons, Plaintiff=s motion for the appointment of counsel (ECF No. 33) is HEREBY DENIED without prejudice. 13 IT IS SO ORDERED. 14 15 Dated: December 4, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael J. Seng 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?