Brim v. Schlaerth et al

Filing 10

ORDER DENYING plaintiff's motion for appointment of counsel, document 7 . Order signed by Magistrate Judge Erica P. Grosjean on 10/30/2017. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:17-cv-00797-AWI-EPG
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

EURIE BRIM, III,

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Plaintiff,
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(ECF No. 7)

v.
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WILLIAM J. SCHLAERTH, et al.
Defendants.

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Eurie Brim, III (“Plaintiff”) is proceeding pro se and in forma pauperis with this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action

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on June 12, 2017. (ECF No. 1). Plaintiff alleges that William J. Schlaerth, a Kern County

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District Attorney, and Sean Mountjoy, a Kern County Sheriff Officer, violated his constitutional

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rights by committing perjury and introducing false evidence to obtain an illegal conviction against

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him. Id. On October 20, 2017, this Court found that the Complaint fails to state any cognizable

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claim upon which relief may be granted under § 1983, and granted Plaintiff leave to file an

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amended complaint. (ECF No. 9.) Now before the Court is Plaintiff’s motion for appointment of

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counsel. (ECF No. 7.)

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Pursuant to 28 U.S.C. § 1915(e)(1), the Court may appoint counsel to an indigent party in

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a civil case. However, the appointment of counsel is not a constitutional right, and the Court

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cannot require an attorney to represent a party. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th

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Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 (9th Cir. 1998); Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). Without a

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reasonable method of securing and compensating counsel, the Court will seek the voluntary

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assistance of counsel only in the most serious and exceptional circumstances. Rand, 113 F.3d at

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1525. In determining whether exceptional circumstances exist, “a district court must evaluate

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both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his

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claims pro se in light of the complexity of the legal issues involved.” Id. (internal quotation

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marks and citations omitted).

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Here, Plaintiff argues that the likelihood of success “for a writ of habeas corpus is over

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whelming [sic].” (ECF No. 7.) Plaintiff, however, cannot bring a section 1983 claim to

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collaterally attack a criminal conviction unless “the conviction or sentence has been reversed on

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direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to

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make such a determination, or called into question by a federal court’s issuance of a writ of

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habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). As it appears that Plaintiff

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seeks to challenge his criminal conviction in this section 1983 action, the Court declines to

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appoint counsel at this time. Nevertheless, if Plaintiff elects to amend his complaint and proceed

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in this action, he may renew his motion for appointment of counsel.

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For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for appointment of
counsel is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

October 30, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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