Bullard v. St. Andra et al

Filing 51

ORDER Denying 49 Motion to Appoint Counsel signed by Magistrate Judge Jeremy D. Peterson on 09/10/2018. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EFREN DANIELLE BULLARD,

Case No. 1:17-cv-00328-LJO-JDP

Plaintiff,
v.

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

BENSON, et al.,
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Defendants.

(Doc. No. 49.)

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Plaintiff Efren Danielle Bullard is proceeding without counsel in this civil rights action

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brought under 42 U.S.C. § 1983. The action proceeds on plaintiff’s cognizable claims for (1)

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violation of the Eighth Amendment against Corrections Officer (“CO”) Jane Doe and CO

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Benson; (2) conspiracy against CO Jane Doe and CO Benson; and (3) First Amendment

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retaliation against CO Davis. (Doc. Nos. 10, 12.) On September 5, 2018, plaintiff filed a motion

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seeking the appointment of counsel. (Doc. No. 49.)

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

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v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en

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banc, 154 F.3d 952 (9th Cir. 1998), and the court lacks the authority to require an attorney to

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represent plaintiff. See Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S.

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296, 298 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C.

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§ 1915(e)(1) (“The court may request an attorney to represent any person unable to afford

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counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, the court

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will seek volunteer counsel only in exceptional circumstances. In determining whether such

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circumstances exist, “the district court must evaluate both the likelihood of success on the merits

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[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.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).

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The court cannot conclude that exceptional circumstances requiring the appointment of

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counsel are present here. Though plaintiff did not graduate from high school, has a speech

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impediment, and has been diagnosed with depression (Doc. No. 49, at 2, 4), the allegations in the

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complaint are not exceptionally complicated. Based on a review of the record, it is not apparent

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that plaintiff is unable to articulate his claims adequately. Further, at this stage in the

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proceedings, the court cannot determine whether plaintiff is likely to succeed on the merits.
For the foregoing reasons, plaintiff’s motion for the appointment of counsel (Doc. No. 49)

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is denied without prejudice.

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IT IS SO ORDERED.

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Dated:
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September 10, 2018
UNITED STATES MAGISTRATE JUDGE

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