Dillingham v. Emerson

Filing 29

ORDER DENYING Plaintiff's 28 Motion to Appoint Counsel, Without Prejudice, signed by Magistrate Judge Stanley A. Boone on 7/19/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY DILLINGHAM,

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Plaintiff,
v.
N. EMERSON, et al.,
Defendants.

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Case No. 1:18-cv-00507-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE
[ECF No. 28]

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Plaintiff Jerry Dillingham is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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Currently before the Court is Plaintiff’s motion for appointment of counsel, filed July 18, 2018.

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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 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 “exceptional

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circumstances exist, the district court must evaluate both the likelihood of success on the merits [and]

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the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Id. (internal quotation marks and citations omitted).
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In the present case, the Court does not find the required exceptional circumstances. Even if it

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assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. The legal issues present in this action

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are not complex, and Plaintiff has thoroughly set forth his allegations. Further, at this early stage in the

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proceedings, the Court cannot yet determine that Plaintiff is likely to succeed on the merits. Further,

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circumstances common to most prisoners, such as lack of legal education and limited law library access,

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do not alone establish exceptional circumstances that would warrant a request for voluntary assistance

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of counsel.
For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY

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DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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July 19, 2018
UNITED STATES MAGISTRATE JUDGE

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