Baker v. German, et al.

Filing 35

ORDER denying 33 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 10/2/2017. (Lundstrom, T)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DOMINIQUE D. BAKER, 12 Plaintiff, 13 14 v. HUMBERTO GERMAN, et al., 15 Defendants. 16 Case No.: 1:16-cv-01873-SAB (PC) ORDER DENYING, WITHOUT PREJUDICE, PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL [ECF No. 33] Plaintiff Dominique Baker is appearing pro se and in forma pauperis in this civil rights action 17 18 ) ) ) ) ) ) ) ) ) ) pursuant to 42 U.S.C. § 1983. 19 On September 29, Plaintiff filed a motion for appointment of counsel. (ECF No. 33.) 20 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 21 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 22 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 23 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 24 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 25 1525. 26 Without a reasonable method of securing and compensating counsel, the court will seek 27 volunteer counsel only in the most serious and exceptional cases. In determining whether 28 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 1 1 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 2 legal issues involved.” Id. (internal quotation marks and citations omitted). The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood 3 4 of success on the merits and the ability of the Plaintiff to articulate his claims pro se in light of the 5 complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 6 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). This action is proceeding on Plaintiff’s 7 excessive force claim against Defendants Humberto German and Phillip Holguin, Plaintiff has 8 thoroughly set forth his allegations in the complaint. While a pro se litigant may be better served with 9 the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is able to 10 “articulate his claims against the relative complexity of the matter,” the “exceptional circumstances” 11 which might require the appointment of counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 12 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of 13 counsel despite fact that pro se prisoner “may well have fared better-particularly in the realm of 14 discovery and the securing of expert testimony.”) In addition, circumstances common to most 15 prisoners, such as lack of legal education and limited law library access, do not establish exceptional 16 circumstances that would warrant a request for voluntary assistance of counsel. In the present case, 17 the Court does not find the required exceptional circumstances. Accordingly, Plaintiff’s motion for 18 appointment of counsel will be DENIED without prejudice. 19 20 IT IS SO ORDERED. 21 Dated: 22 October 2, 2017 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 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?