Thompson v. Gomez et al

Filing 49

ORDER DENYING Plaintiff's 48 Motion to Appoint Counsel, without Prejudice signed by Magistrate Judge Stanley A. Boone on 5/31/2019. (Sant Agata, S)

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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,

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v.
A. GOMEZ, et al.,

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Defendants.

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ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL,
WITHOUT PREJUDICE
[ECF No. 48]

action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion for appointment of counsel, filed May 30,

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Case No.: 1:18-cv-00125-LJO-SAB (PC)

Plaintiff Mark Shane Thompson is appearing pro se and in forma pauperis in this civil rights

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2019.

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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. 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).
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.”) Accordingly, Plaintiff’s motion for the appointment of counsel is denied, without

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prejudice.

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IT IS SO ORDERED.

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Dated:

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May 31, 2019
UNITED STATES MAGISTRATE JUDGE

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