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Brian Espritt v. A. Saesee

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 14, 2011

BRIAN ESPRITT,
PLAINTIFF,
v.
A. SAESEE, ET. AL.,
DEFENDANTS.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL

(ECF No. 7)

On June 3, 2011, 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). 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. However, 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).

Plaintiff alleges that court-appointed counsel is necessary in this case because he had been declared mentally incompetent in a related criminal proceeding. (ECF No. 7.) The Court is sympathetic to Plaintiff's plight but this fact alone does not constitute exceptional circumstances at this point in the litigation. Plaintiff's case is awaiting screening by the Court and, until such screening occurs, no further action is required by Plaintiff. If this case proceeds to discovery, Plaintiff may refile his request and the Court will evaluate whether, at that time and under the relevant circumstances, the appointment of counsel is appropriate.

For the foregoing reasons, Plaintiff's motion for the appointment of counsel is HEREBY DENIED, without prejudice.

IT IS SO ORDERED.

20110614

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