Foster v. Huewe et al

Filing 31

ORDER Denying, without Prejudice, Plaintiff's Second 30 Motion for Appointment of Counsel signed by Magistrate Judge Stanley A. Boone on 12/22/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DERRYL TYRONE FOSTER,

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Plaintiff,

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v.

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J. HUEWE, et al.,

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Defendants.

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Case No.: 1:16-cv-01839-AWI-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S SECOND MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 30]

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Plaintiff Derryl Tyrone Foster is proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
On December 21, 2017, Plaintiff filed a second motion for appointment of counsel. As

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Plaintiff is aware, he 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), and the court cannot require any attorney to represent

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him pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court

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may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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1525. 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 “exceptional

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circumstances exist, the district court must evaluate both the likelihood of success on the merits [and]
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the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Id. (internal quotation marks and citations omitted).
The test for exceptional circumstances requires the court to evaluate a plaintiff’s likelihood of

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success on 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. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish exceptional

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circumstances that would warrant a request for voluntary assistance of counsel.
At this time, the Court does not find the exceptional circumstances necessary to request

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volunteer counsel at this time. Plaintiff is proceeding on claims of excessive force and failure to

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protect for which the legal issues are not complex, and Plaintiff has thoroughly set forth his allegations

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in the complaint. While a pro se litigant may be better served with the assistance of counsel, so long

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as a pro se litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative

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complexity of the matter,” the “exceptional circumstances” which might require the appointment of

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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28

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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner

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“may well have fared better-particularly in the realm of discovery and the securing of expert

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testimony.”) Accordingly, Plaintiff’s second motion for appointment of counsel is denied, without

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prejudice.

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IT IS SO ORDERED.

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Dated:

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December 22, 2017
UNITED STATES MAGISTRATE JUDGE

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