(PC) McCoy v. Kelso ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH RAYMOND MCCOY, ) Case No.: 1:12-cv-000983-AWI-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING, WITHOUT PREJUDICE, 13 v. ) PLAINTIFF’S SEVENTH MOTION FOR APPOINTMENT OF COUNSEL 14 STRONACH, et al., ) ) (ECF No. 252) 15 Defendants. ) ) 16 ) 17 Plaintiff Joseph Raymond McCoy is appearing pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s seventh motion for appointment of counsel, filed 20 September 15, 2020. 21 As Plaintiff is well aware, he does not have a constitutional right to appointed counsel in this 22 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any 23 attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District 24 Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 25 circumstances the court may request the voluntary assistance of counsel pursuant to section 26 1915(e)(1). Rand, 113 F.3d at 1525. 27 /// 28 /// 1 Without a reasonable method of securing and compensating counsel, the Court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 4 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the Court does not find the required exceptional circumstances. 7 Circumstances common to most prisoners, such as lack of legal education and limited law library 8 access, do not establish exceptional circumstances that would warrant a request for voluntary 9 assistance of counsel. Even if it assumed that Plaintiff is not well versed in the law and that he has 10 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 11 Plaintiff alleges an Eighth Amendment claim against several defendants for denying him appropriate 12 medical attention. The legal issues present in this action are not complex, and Plaintiff has thoroughly 13 set forth his allegations in the complaint. At this time, the Court cannot make a determination that 14 Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the Court 15 does not find that Plaintiff cannot adequately articulate his claims. Id. Although Plaintiff contends 16 that he has suffered an injury to his left hand, it is clear that Plaintiff is able to litigate this action either 17 by himself or with assistance. 18 While a pro se litigant may be better served with the assistance of counsel, so long as a pro se 19 litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative 20 complexity of the matter,” the “exceptional circumstances” which might require the appointment of 21 counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 22 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner 23 “may well have fared better-particularly in the realm of discovery and the securing of expert 24 testimony.”) 25 /// 26 /// 27 /// 28 /// wOoOe 4:40 SA VUTEC Ie AY VV 1 For the foregoing reasons, Plaintiff's seventh motion for the appointment of counsel is 2 |} HEREBY DENIED, without prejudice. 3 4 IT IS SO ORDERED. A fe 5 Dated: _ September 16, 2020 OF 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28