Opinion
1:11-cv-00420-LJO-SAB (PC)
2013-10-22
KEITH DUANE ARLINE, JR., Plaintiff, v. KEN CLARK, et al, Defendant.
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 19)
On October 21, 2013, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), 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, the 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 citations omitted).
In the present case, Plaintiff contends that because of his placement in administrative segregation and lack of law library access, he is in need of appointed counsel to assist him in filing a second amended complaint. The Court does not find the required exceptional circumstances.
The test for exception circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escadeleron, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
Furthermore, even if it is assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. Plaintiff alleges an Eighth Amendment claim against several defendants for the denial of outdoor exercise during a modified program resulting in cruel and unusual punishment, and his prior complaint filed in this action reflect an ability to express the issue adequately. The legal issues present in this action are not complex. Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exception circumstances that would warrant a request for voluntary assistance of counsel. This court is faced with similar cases almost daily. Further, at this early stage in the proceedings, the court cannot make a determination that plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the 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 HEREBY DENIED, without prejudice. IT IS SO ORDERED.
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UNITED STATES MAGISTRATE JUDGE