Garcia v. Garcia, et al.

Filing 30

ORDER denying 29 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 1/8/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARCO A. GARCIA,

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Plaintiff,

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ORDER DENYING MOTION TO APPOINT
COUNSEL

v.

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Case No. 1:17-cv-01313-BAM (PC)

GARCIA, et al.,

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(ECF No. 29)
Defendants.

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Plaintiff Marco A. Garcia (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s complaint against Defendants Garcia and Bursiaga for excessive force in violation of

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the Eighth Amendment.

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Currently before the Court is Plaintiff’s motion for appointment of counsel, filed January

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3, 2019. (ECF No. 29.) Plaintiff requests that the Court appoint counsel to represent him due to

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his limited knowledge of the law, inability to afford counsel, lack of response from attorneys, the

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complexity of issues in this case, and Plaintiff’s incarceration. (Id.)

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

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954

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n.1 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28

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U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298
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(1989). However, in certain exceptional circumstances the Court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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The Court has considered Plaintiff’s motion for the appointment of counsel, but does not
find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed

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in the law and that he has made serious allegations which, if proved, would entitle him to relief,

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his case is not exceptional. This Court is faced with similar cases involving excessive force filed

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by prisoners proceeding pro se and in forma pauperis almost daily. These prisoners also must

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conduct legal research and gather evidence without the assistance of counsel.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the

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Court does not find that Plaintiff cannot adequately articulate his claims. Throughout this action,

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Plaintiff has been able to prepare and file documents that clearly set forth his contentions, without

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assistance from counsel.

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For the foregoing reasons, Plaintiff’s motion to appoint counsel (ECF No. 29) is DENIED,
without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 8, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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