Buck v. Ndoh et al

Filing 7

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)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12

ELVIN RAY BUCK,
Plaintiff,

13
14

v.

15

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)

Defendants.

16
17
18
19

Elvin Buck (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action filed

20

pursuant to 42 U.S.C. § 1983. On March 8, 2018, Plaintiff filed a motion for appointment of pro

21

bono counsel. (ECF No. 5).

22
23

Plaintiff asks for appointment of counsel because of his mental health issues and mental
capacity.

24

Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

25

Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952

26

(9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28

27

U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

28

490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances
1

1

the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

2

113 F.3d at 1525.

3

Without a reasonable method of securing and compensating counsel, the Court will seek

4

volunteer counsel only in the most serious and exceptional cases.

In determining whether

5

“exceptional circumstances exist, a district court must evaluate both the likelihood of success of

6

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

7

complexity of the legal issues involved.” Id. (internal quotation marks and citation omitted).

8

The Court will not order appointment of pro bono counsel at this time. The Court has

9

reviewed the record in this case, and at this time the Court cannot make a determination that Plaintiff

10

is likely to succeed on the merits of his claims (the complaint is awaiting screening). Moreover,

11

based on the complaint, it appears that Plaintiff can adequately articulate his claims.

12
13

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.

14

Alternatively, Plaintiff may refile this motion immediately, but must include additional facts

15

and evidence related to his mental issues and mental capacity. While Plaintiff claims to have mental

16

health issues and insufficient mental capacity to prosecute this case, he has provided no evidence of

17

these allegations. He has also not explained how his mental health issues and mental capacity affects

18

his ability to prosecute this case. As mentioned above, the Court has reviewed Plaintiff’s complaint,

19

and it appears that Plaintiff can adequately articulate his claims.

20
21

For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for appointment of pro
bono counsel is DENIED without prejudice.

22
23
24

IT IS SO ORDERED.
Dated:

March 12, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

25
26
27
28
2