Topper v. Yates et al
Filing
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ORDER DENYING 6 Motion to Appoint Counsel, signed by Magistrate Judge Gerald B. Cohn on 6/14/11. (Gonzalez, R)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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JAMES E. TOPPER,
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Plaintiff,
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1:11-cv-00849-GBC (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
v.
JAMES YATES, et al.,
(ECF No. 6)
Defendants.
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________________________________/
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ORDER
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On June 3, 2011, Plaintiff filed a motion seeking the appointment of counsel.
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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 an
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attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United
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States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct.
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1814, 1816 (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
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F.3d at 1525.
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Without a reasonable method of securing and compensating counsel, the Court
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will seek volunteer counsel only in the most serious and exceptional cases. In
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determining whether “exceptional circumstances exist, a district court must evaluate
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both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate
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his claims pro se in light of the complexity of the legal issues involved.” Id. (internal
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quotation marks and citations omitted).
In the present case, the Court does not find the required exceptional
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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that
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he has made serious allegations which, if proved, would entitle him to relief, his case is
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not exceptional. This Court is faced with similar cases almost daily. Further, at this
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early stage in the proceedings, the Court cannot make a determination that Plaintiff is
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likely to succeed on the merits, and based on a review of the record in this case, the
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Court does not find that Plaintiff cannot adequately articulate his claims. Id.
For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is
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HEREBY DENIED, without prejudice.
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IT IS SO ORDERED.
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Dated:
1j0bbc
June 14, 2011
UNITED STATES MAGISTRATE JUDGE
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