Thompson v. Gomez et al

Filing 108

ORDER DENYING 107 Plaintiff's Fourth Request for Appointment of Counsel, Without Prejudice signed by Magistrate Judge Stanley A. Boone on 6/3/2022. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK SHANE THOMPSON,

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Plaintiff,
v.
A. GOMEZ, et al.,

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Defendants.

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Case No.: 1:18-cv-00125-NONE-SAB (PC)
ORDER DENYING PLAINTIFF’S FOURTH
REQUEST FOR APPOINTMENT OF COUNSEL,
WITHOUT PREJUDICE
(ECF No. 107)

Plaintiff Mark Shane Thompson is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion fourth request for appointment of counsel, filed
June 2, 2022.
As Plaintiff is well aware, he does not have a constitutional right to appointed counsel in this

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action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any

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attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District

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Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

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circumstances the court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating

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counsel, the court will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate both the
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likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in

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

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omitted).

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In the present case, the Court does not find the required exceptional circumstances. Plaintiff is

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proceeding on a claim of excessive force and the legal issues present in this action are not complex,

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and Plaintiff has thoroughly set forth his allegations in the complaint. Even if it assumed that Plaintiff

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is not well versed in the law and that he has made serious allegations which, if proved, would entitle

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him to relief, his case is not exceptional. The Court is faced with similar cases almost daily. While

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

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the test is not whether Plaintiff would benefit from the appointment of counsel. See Wilborn v.

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

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

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

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not. While a pro se litigant may be better served with the assistance of counsel, so long as a pro se

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litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative

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complexity of the matter,” the “exceptional circumstances” which might require the appointment of

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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28

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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner

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“may well have fared better-particularly in the realm of discovery and the securing of expert

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testimony.”) Although this case is currently set for jury trial, that fact, alone, does not entitle Plaintiff

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to appointment of counsel. Accordingly, Plaintiff’s fourth motion for the appointment of counsel shall

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be denied, without prejudice.

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Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s fourth motion for

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appointment of counsel is denied, without prejudice.

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IT IS SO ORDERED.

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Dated:

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June 3, 2022
UNITED STATES MAGISTRATE JUDGE

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