Opinion
Case No. 1:09-cv-01080-AWI-SKO PC
08-12-2013
MICHAEL CHAVEZ, Plaintiff, v. JAMES YATES, et al., Defendants.
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND FOR
EXPERT FEES
(Doc. 31)
Plaintiff Michael Chavez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 19, 2009. On May 10, 2013, Plaintiff filed a motion seeking (1) the appointment of counsel and (2) expert fees pursuant to 42 U.S.C. § 1988(c).
Plaintiff does not have a constitutional right to the appointment of counsel in this action. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The Court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1), but it will do so only if exceptional circumstances exist. Palmer, 560 F.3d at 970; Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In making this determination, the Court must evaluate the likelihood of success on the merits and the ability of Plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970 (citation and quotation marks omitted); Wilborn, 789 F.2d at 1331. Neither consideration is dispositive and they must be viewed together. Palmer, 560 F.3d at 970 (citation and quotation marks omitted); Wilborn 789 F.2d at 1331.
In the present case, the Court does not find the required exceptional circumstances. 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. The 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. Therefore, Plaintiff's motion for the appointment of counsel shall be denied.
With respect to expert fees, section 1988 provides that they may be awarded as part of attorney's fees. 42 U.S.C. § 1988(c). However, Plaintiff is not entitled to attorney's fees under section 1988 because he is a pro se litigant and his motion shall be denied. Kay v. Ehrler, 499 U.S. 432, 435, 1423 S.Ct. 1435 (1991); Elwood v. Drescher, 456 F.3d 943, 946-48 (9th Cir. 2006).
Based on the foregoing, Plaintiff's motion for the appointment of counsel and for expert fees under 42 U.S.C. § 1988(c) is HEREBY ORDERED DENIED. IT IS SO ORDERED.
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE