Brothers, II v. Buenafe et al
Filing
27
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)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10
11
12
AUBREY LEE BROTHERS, II,
Case No. 1:17-cv-00607-LJO-JDP
Plaintiff,
v.
13
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
STATE OF CALIFORNIA, et al.,
14
Defendants.
ECF Nos. 25, 26
15
16
17
Plaintiff Aubrey Lee Brothers, II, is proceeding without counsel in this civil rights action
18
brought under 42 U.S.C. § 1983. Plaintiff’s third amended complaint is awaiting screening under
19
28 U.S.C. § 1915A. Plaintiff has filed two motions seeking the appointment of counsel. ECF
20
Nos. 25, 26. He states that appointment of counsel is necessary because the case is complex, and
21
he lacks the mental capacity to prosecute the case effectively. See id.
22
Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand
23
v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en
24
banc, 154 F.3d 952 (9th Cir. 1998), and the court lacks the authority to require an attorney to
25
represent plaintiff, see Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S.
26
296, 298 (1989). The court may request the voluntary assistance of counsel. See 28 U.S.C.
27
§ 1915(e)(1) (“The court may request an attorney to represent any person unable to afford
28
1
1
counsel”); Rand, 113 F.3d at 1525. However, without a means to compensate counsel, the court
2
will seek volunteer counsel only in exceptional circumstances. In determining whether such
3
circumstances exist, “the district court must evaluate both the likelihood of success on the merits
4
[and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the
5
legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).
6
The court cannot conclude that exceptional circumstances requiring the appointment of
7
counsel are present here. The allegations in the complaint are not exceptionally complicated.
8
Based on a review of the record, it is not apparent that plaintiff is unable to articulate his claims
9
adequately. Further, at this stage in the proceedings, the court cannot determine whether plaintiff
10
is likely to succeed on the merits.
11
The court may revisit this issue at a later stage of the proceedings if the interests of justice
12
so require. If plaintiff later renews his request for counsel, he should provide a detailed
13
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
14
15
denied without prejudice.
16
17
IT IS SO ORDERED.
18
Dated:
December 7, 2018
19
UNITED STATES MAGISTRATE JUDGE
20
21
22
23
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?