McCurdy v. Kernan et al

Filing 69

ORDER DENYING 68 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 4/8/2020. (Sant Agata, S)

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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. 68)

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

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Case No.: 1:17-cv-01356-NONE-SAB (PC)

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

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6, 2020.

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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), 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.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).

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In the present case, the court does not find the required exceptional circumstances exist to

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justify appointment of counsel. Plaintiff argues that he is not well versed in the law, has limited access

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to legal documents because he is housed in segregation and that he has made serious allegations

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which, if proved, would entitle him to relief. However, Plaintiff’s case is not exceptional. The Court

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is faced with similar cases almost daily.

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

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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.

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Plaintiff argues that his claims are complex because he has brought multiple claims alleging

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excessive force and battery but the Court sees similar claims on a regular basis. Plaintiff contends that

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his case will require him to conduct discovery and will involve conflicting testimony, but these

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circumstances exist in almost every case before the court. Although Plaintiff alleges that he has

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mental health issues, he has not identified how they issues will impact his ability to litigate this action

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and, based on the record, he has demonstrated the ability to articulate his claims and has defeated

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Defendant’s motion for summary judgment for failure to exhaust.

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Considering the nature of Plaintiff’s excessive force claims together with Plaintiff’s ability to

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articulate his claim and filings in this matter, the Court does not find exception circumstances exist to

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justify appointment of counsel. Circumstances common to most prisoners, such as lack of legal

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education and limited law library access, the need to conduct discovery, and the request for a jury trial,

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do not establish exceptional circumstances that would warrant a request for voluntary assistance of
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counsel. Accordingly, Plaintiff’s motion for the appointment of counsel is HEREBY DENIED,

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without prejudice.

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IT IS SO ORDERED.

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Dated:

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April 8, 2020
UNITED STATES MAGISTRATE JUDGE

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