Buck v. Ndoh et al
ORDER DENYING WITHOUT PREJUDICE 5 Motion to Appoint Counsel -Pro Bono, signed by Magistrate Judge Erica P. Grosjean on 03/12/2018. (Martin-Gill, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ELVIN RAY BUCK,
R. NDOH, et al.,
Case No. 1:18-cv-00275-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF PRO BONO
COUNSEL WITHOUT PREJUDICE
(ECF NO. 5)
Elvin Buck (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action filed
pursuant to 42 U.S.C. § 1983. On March 8, 2018, Plaintiff filed a motion for appointment of pro
bono counsel. (ECF No. 5).
Plaintiff asks for appointment of counsel because of his mental health issues and mental
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952
(9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28
U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,
490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances
the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,
113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the Court will seek
volunteer counsel only in the most serious and exceptional cases.
In determining whether
“exceptional circumstances exist, a district court must evaluate both the likelihood of success of
the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
complexity of the legal issues involved.” Id. (internal quotation marks and citation omitted).
The Court will not order appointment of pro bono counsel at this time. The Court has
reviewed the record in this case, and at this time the Court cannot make a determination that Plaintiff
is likely to succeed on the merits of his claims (the complaint is awaiting screening). Moreover,
based on the complaint, it appears that Plaintiff can adequately articulate his claims.
Plaintiff is advised that he is not precluded from renewing his motion for appointment of pro
bono counsel at a later stage of the proceedings.
Alternatively, Plaintiff may refile this motion immediately, but must include additional facts
and evidence related to his mental issues and mental capacity. While Plaintiff claims to have mental
health issues and insufficient mental capacity to prosecute this case, he has provided no evidence of
these allegations. He has also not explained how his mental health issues and mental capacity affects
his ability to prosecute this case. As mentioned above, the Court has reviewed Plaintiff’s complaint,
and it appears that Plaintiff can adequately articulate his claims.
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for appointment of pro
bono counsel is DENIED without prejudice.
IT IS SO ORDERED.
March 12, 2018
UNITED STATES MAGISTRATE JUDGE
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