Brown v. Johnson & Johnson

Filing 11

ORDER Denying 6 Motion to Appoint Counsel, and Granting Request for Forms signed by Magistrate Judge Erica P. Grosjean on 10/30/2017. (Flores, E)

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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-01285-AWI-EPG
BRUCE BROWN,

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Plaintiff,
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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL, AND
GRANTING REQUEST FOR FORMS
(ECF No. 6)

v.
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JOHNSON & JOHNSON,

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Defendant.

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Bruce Brown (“Plaintiff”) is proceeding pro se with this products liability action. This

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action was removed from Sacramento Superior Court on September 12, 2017. (ECF No. 1.) Now

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before the Court is Plaintiff’s motion for appointment of counsel and request for a consent to

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proceed before a magistrate judge form and consent to trial by a magistrate judge form. (ECF No.

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6.)

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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Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 (9th Cir. 1998); Mallard v. United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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The Court declines to appoint counsel at this time. First, Plaintiff is not proceeding in
forma pauperis in this action pursuant to 28 U.S.C. § 1915, and has not provided an affidavit as to

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his indigency. See United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (holding that to

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obtain appointment of counsel under section 1915, parties must demonstrate their indigency).

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Second, the Court has reviewed the record in this case, and at this time cannot make a

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determination that Plaintiff is likely to succeed on the merits of his claims. While, Plaintiff states

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that he is fearful that he will be tricked or misled by defense counsel, or make a mistake that will

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get his case, (ECF No. 7), he has failed to show that he is unable to “articulate his claims against

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the relative complexity of the matter.” Rand, 113 F.3d at 1525. Thus, the exceptional

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circumstances which might require the appointment of counsel do not exist.

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Nevertheless, Plaintiff is not precluded from renewing his motion for appointment of
counsel at a later stage of the proceedings.

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For the foregoing reasons, IT IS ORDERED that:

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1. Plaintiff’s motion for appointment of counsel is DENIED without prejudice.

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2. The clerk is directed to send Plaintiff a “Consent to / Decline of Jurisdiction of United
States Magistrate Judge” Form.

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IT IS SO ORDERED.
Dated:

October 30, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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