Jackson v. Smalley et al

Filing 17

ORDER DENYING 15 Plaintiff's Second Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 5/5/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICK JACKSON,

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1:17-cv-00110-MJS (PC)

Plaintiff,
v.
L. SMALLEY, et al.,
Defendants.

ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF
COUNSEL
(ECF NO. 15)

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On January 24, 2017, Plaintiff filed a motion seeking the appointment of counsel.

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(ECF No. 3.) The Court denied Plaintiff’s motion, finding that no exceptional

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circumstances existed to warrant the appointment of counsel. (ECF No. 7.) On May 1,

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2017, Plaintiff filed a second motion seeking the appointment of counsel. (ECF No. 15.)

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That motion is now before the Court.

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Plaintiff does not have a constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and a court cannot require an

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attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances, a court may request the voluntary assistance of

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counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a

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reasonable method of securing and compensating counsel, volunteer counsel will be

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appointed only in the most serious and exceptional cases. In determining whether

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Aexceptional circumstances exist,” a court “must evaluate both the likelihood of success

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of 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.” Id. (internal quotation marks and citations

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omitted).

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As the Court stated in its previous order denying Plaintiff’s motion for appointment

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of counsel, the Court does not find the required exceptional circumstances in the present

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case. The Court finds that there has been no change in circumstances since the Court’s

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previous ruling. Even if it is assumed that Plaintiff is not well versed in the law and that

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he has made serious allegations which, if proved, would entitle him to relief, his case is

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not exceptional. This Court is faced with similar cases almost daily. At this early stage in

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the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed

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on the merits, and based on a review of the record in this case, the Court does not find

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that Plaintiff cannot adequately articulate his claims. Id.

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For the foregoing reasons, Plaintiff=s second motion for the appointment of
counsel is HEREBY DENIED, without prejudice.
IT IS SO ORDERED.

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Dated:

May 5, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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