Mixon, Jr. v. Tyson et al

Filing 10

ORDER DENYING 9 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 5/18/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LENDWARD ALTON MIXON, JR.,
Plaintiff,

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v.
H. TYSON, et al.,
Defendants.

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Case No.: 1:16-cv-01868-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION TO
APPOINT COUNSEL
(ECF No. 9)

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Plaintiff Lendward Alton Mixon, Jr., is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge

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jurisdiction. (ECF No. 6.)

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On May 15, 2017, Plaintiff filed a motion for the appointment of counsel. (ECF No. 15.)

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Plaintiff asserts that he is receiving mental health treatment, has been admitted to the hospital, and he

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does not have access to his legal property. Plaintiff seeks legal representation as a result.

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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 n.1

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

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1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). However,

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in certain exceptional circumstances the court may request the voluntary assistance of counsel

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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

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volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional

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circumstances exist, a 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 Court has considered Plaintiff’s motion for the appointment of counsel, but does not find

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

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and that he has made serious allegations which, if proved, would entitle him to relief, his case is not

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exceptional. This Court is faced with similar cases involving allegations of deliberate indifference to

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serious medical needs by prisoners proceeding pro se almost daily. These prisoners also must conduct

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legal research and prosecute claims without the assistance of counsel.
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. Plaintiff’s complaint has not yet been screened as required,

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and thus the case does not yet proceed on any cognizable claims. Also, based on a review of the

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limited record in this case, the Court does not find that Plaintiff cannot adequately articulate his

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claims.

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel (ECF No. 9) is

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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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