(PC) McCurdy v. Kernan ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES C. McCURDY, ) Case No.: 1:17-cv-01356-LJO-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING, WITHOUT PREJUDICE, 13 v. ) PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL ) 14 S. KERNAN, et al., ) [ECF No. 60] 15 Defendants. ) ) 16 ) 17 Plaintiff James C. McCurdy is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed October 15, 20 2019. 21 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 23 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 24 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 25 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 26 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 th 4 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of th 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. Even if it 7 || assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if 8 || proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases 9 || almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status an 10 || his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. □□□□ 11 || Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of 12 || further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 13 || facts necessary to support the case.”) The test is whether exception circumstances exist and here, the 14 do not. Considering the nature of Plaintiff's excessive force claims together with Plaintiff's ability to 15 || articulate his claim, the Court does not find exception circumstances exist to justify appointment of 16 counsel. Circumstances common to most prisoners, such as lack of legal education and limited law 17 || library access, do not establish exceptional circumstances that would warrant a request for voluntary 18 || assistance of counsel. Accordingly, Plaintiff's motion for the appointment of counsel is denied, 19 || without prejudice. 20 21 IS SO ORDERED. A (ee 22 lI pated: _ October 17, 2019 OF 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28