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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOMINIQUE D. BAKER,

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Plaintiff,

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v.
HUMBERTO GERMAN, et al.,

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Defendants.

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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

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pursuant to 42 U.S.C. § 1983.

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On September 29, Plaintiff filed a motion for appointment of counsel. (ECF No. 33.)

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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), and the court cannot require any attorney to represent

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plaintiff 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.

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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

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

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legal issues involved.” Id. (internal quotation marks and citations omitted).
The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood

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of 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). This action is proceeding on Plaintiff’s

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excessive force claim against Defendants Humberto German and Phillip Holguin, Plaintiff has

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thoroughly set forth his allegations in the complaint. While a pro se litigant may be better served with

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the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is able to

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“articulate his claims against the relative complexity of the matter,” the “exceptional circumstances”

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which might require the appointment of counsel do not exist. Rand v. Rowland, 113 F.3d at 1525

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(finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of

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counsel despite fact that pro se prisoner “may well have fared better-particularly in the realm of

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discovery and the securing of expert testimony.”) In addition, 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. In the present case,

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the Court does not find the required exceptional circumstances. Accordingly, Plaintiff’s motion for

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appointment of counsel will be DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

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October 2, 2017
UNITED STATES MAGISTRATE JUDGE

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