(PC) Mackey v. Rudd, et al.

Filing 21

ORDER DENYING 20 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 1/6/2024. (Deputy Clerk TEL)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TERRY MACKEY,

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Plaintiff,

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v.

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RUDD, et al.,

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Case No. 1:24-cv-00648-JLT-BAM (PC)
ORDER DENYING MOTION TO APPOINT
COUNSEL
(ECF No. 20)

Defendants.

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Plaintiff Terry Mackey (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s second amended complaint against: (1) Defendants Rudd and Ram for excessive force

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in violation of the Eighth Amendment; (2) Defendant Mix for failure to prevent harm in violation

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of the Eighth Amendment; (3) Defendants Rudd and Ram for a state law claim for battery; and

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(4) Defendants Rudd, Ram, and Mix for a state law claim for negligence.

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Currently before the Court is Plaintiff’s motion for appointment of counsel, filed January

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2, 2025. (ECF No. 20.) Plaintiff states that he is unable to afford counsel, and the claims are

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complex because they are based on allegations of excessive use of force resulting in injury and

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may require expert testimony. The claims involve multiple defendants and witnesses and will

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require extensive discovery including confidential material, which Plaintiff cannot access due to

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his incarceration. Plaintiff is limited in knowledge of law, and appointment of counsel would
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provide him the opportunity to obtain representation equally qualified with the counsel provided

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by the state for Defendants. Plaintiff has contacted 5 or more attorneys seeking assistance, with

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no luck. (Id.)

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Defendants have not yet been served and have not had the opportunity to respond to

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Plaintiff’s motion, but the Court finds a response unnecessary. The motion is deemed submitted.

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Local Rule 230(l).

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Plaintiff is informed that he does not have a constitutional right to appointed counsel in

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this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other

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grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.

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of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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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

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

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

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

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The Court has considered Plaintiff’s request, but does not find the required exceptional

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circumstances. Even if it is assumed that Plaintiff has made serious allegations which, if proved,

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would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed

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almost daily by prisoners who must also conduct legal research, obtain discovery, and litigate

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their cases without the assistance of counsel and with limited access to witnesses or expert

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testimony.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Although Plaintiff’s complaint was screened and

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found to state cognizable claims, this does not mean that Plaintiff’s claims are likely to succeed

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on the merits. Finally, based on a review of the record in this case, the Court does not find that
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Plaintiff cannot adequately articulate his claims.
Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 20), is HEREBY DENIED,
without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara A. McAuliffe

January 6, 2025

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UNITED STATES MAGISTRATE JUDGE

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