McCurdy v. Kernan et al

Filing 61

ORDER DENYING 60 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 1017/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES C. McCURDY,

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Plaintiff,

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v.
S. KERNAN, et al.,

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Defendants.

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ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S MOTION FOR APPOINTMENT OF
COUNSEL
[ECF No. 60]

pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion for appointment of counsel, filed October 15,

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Case No.: 1:17-cv-01356-LJO-SAB (PC)

Plaintiff James C. McCurdy is appearing pro se and in forma pauperis in this civil rights action

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2019.
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), and the court cannot require any attorney to represent

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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court

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may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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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, the district court must evaluate both the likelihood of success on the

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

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

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In the present case, the court does not find the required exceptional circumstances. Even if it

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assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases

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almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status and

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his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of

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further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the

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facts necessary to support the case.”) The test is whether exception circumstances exist and here, they

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do not. Considering the nature of Plaintiff’s excessive force claims together with Plaintiff’s ability to

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articulate his claim, the Court does not find exception circumstances exist to justify appointment of

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counsel. Circumstances common to most prisoners, such as lack of legal education and limited law

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library access, do not establish exceptional circumstances that would warrant a request for voluntary

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assistance of counsel. Accordingly, Plaintiff’s motion for the appointment of counsel is denied,

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without prejudice.

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IT IS SO ORDERED.

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Dated:

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October 17, 2019
UNITED STATES MAGISTRATE JUDGE

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