Brothers, II v. Buenafe et al
ORDER DENYING Motion for Appointment of Counsel 25 , 26 , signed by Magistrate Judge Jeremy D. Peterson on 12/7/2018: Motions are denied with prejudice. (Hellings, J)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
AUBREY LEE BROTHERS, II,
Case No. 1:17-cv-00607-LJO-JDP
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
STATE OF CALIFORNIA, et al.,
ECF Nos. 25, 26
Plaintiff Aubrey Lee Brothers, II, is proceeding without counsel in this civil rights action
brought under 42 U.S.C. § 1983. Plaintiff’s third amended complaint is awaiting screening under
28 U.S.C. § 1915A. Plaintiff has filed two motions seeking the appointment of counsel. ECF
Nos. 25, 26. He states that appointment of counsel is necessary because the case is complex, and
he lacks the mental capacity to prosecute the case effectively. See id.
Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand
v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en
banc, 154 F.3d 952 (9th Cir. 1998), and the court lacks the authority to require an attorney to
represent plaintiff, see Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S.
296, 298 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C.
§ 1915(e)(1) (“The court may request an attorney to represent any person unable to afford
counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, the court
will seek volunteer counsel only in exceptional circumstances. In determining whether such
circumstances exist, “the district court must evaluate both the likelihood of success on the merits
[and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the
legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).
The court cannot conclude that exceptional circumstances requiring the appointment of
counsel are present here. The allegations in the complaint are not exceptionally complicated.
Based on a review of the record, it is not apparent that plaintiff is unable to articulate his claims
adequately. Further, at this stage in the proceedings, the court cannot determine whether plaintiff
is likely to succeed on the merits.
The court may revisit this issue at a later stage of the proceedings if the interests of justice
so require. If plaintiff later renews his request for counsel, he should provide a detailed
explanation of the circumstances that he believes justify appointment of counsel
Accordingly, plaintiff’s motions for the appointment of counsel, ECF Nos. 25, 26, are
denied without prejudice.
IT IS SO ORDERED.
December 7, 2018
UNITED STATES MAGISTRATE JUDGE
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