Clayton v. Smith et al

Filing 21

ORDER DENYING 20 Plaintiff's Motion to Appoint Counsel Without Prejudice signed by Magistrate Judge Barbara A. McAuliffe on 1/3/2018. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BLAINE CLAYTON,

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Plaintiff,
vs.
STEVEN SMITH, et al.,
Defendants.

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Case No.: 1:17-cv-00309-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR THE APPOINTMENT OF COUNSEL,
WITHOUT PREJUDICE
(ECF No. 20)

Plaintiff Blaine Clayton is a state prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion for assignment of counsel with supporting

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memorandum of points and authorities and a declaration, filed on December 29, 2017. (ECF No.

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20.) Plaintiff seeks appointed counsel on the grounds that he has no income to hire counsel, has

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no legal knowledge, and has contacted counsel to hire, but none will accept his suit. Plaintiff has

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attached some letters from attorneys who have declined to represent him. Finally, Plaintiff

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asserts that the legal resources available to him are minimal, and that his case is complex.

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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). The Court cannot require any attorney to

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

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

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circumstances the court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating

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counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate both the

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likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro

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se in light of the complexity of the legal issues involved.” Id. (internal quotation marks and

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citations omitted).

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Here, Plaintiff has not yet stated any cognizable claim, but the Court finds he is

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adequately able to articulate the facts and allegations of his asserted claim, and is providing him

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an opportunity to amend his complaint. Claims, such as Plaintiff’s in this case, concerning

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denied lack of sufficient medical care are commonly brought by prisoners without counsel before

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this Court. Additionally, circumstances common to most prisoners, such as lack of legal

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education and limited law library access, do not establish exceptional circumstances that would

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warrant a request for voluntary assistance of counsel. Finally, at this early stage in the litigation,

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the Court cannot make any determination that Plaintiff is likely to succeed on the merits.

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Therefore, the Court does not find exceptional circumstances here warranting a search for

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voluntary counsel to appoint in this case.

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For these reasons, Plaintiff’s motion to appoint counsel, filed on December 29, 2017
(ECF No. 20), is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

January 3, 2018

/s/ Barbara

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE