Kayaian v. American Ambulance

Full title: SEVAN KAYAIAN, Plaintiff, v. AMERICAN AMBULANCE, Defendants.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Jan 3, 2007

1:06-cv-1633-AWI-SMS (E.D. Cal. Jan. 3, 2007)

Opinion

SEVAN KAYAIAN, Plaintiff, v. AMERICAN AMBULANCE, Defendants. No. 1:06-cv-1633-AWI-SMS United States District Court, E.D. California. January 3, 2007

          ORDER DENYING PLAINTIFF'S REQUEST. FOR APPOINTMENT OF COUNSEL (DOC. 5).

          SANDRA M. SNYDER, Magistrate Judge.

         Plaintiff is proceeding pro se with an action for damages and other relief concerning alleged civil rights violations. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304.

         Despite the Court's order to do so, Plaintiff has not filed a completed application to proceed in forma pauperis or, in the alternative, paid the filing fee. Plaintiff is being given an opportunity to pay the filing fee by a separate order.

         On December 7, 2006, Plaintiff filed a document in which he asked the court to appoint an attorney to assist him in this case. The Court may request an attorney voluntarily to represent a person proceeding in forma pauperis who is unable to afford counsel. 28 U.S.C. § 1915(d). Appointment of counsel by the Court in such circumstances is discretionary, not mandatory. United States v. $292, 888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). Appointment may be made if a court finds that there are exceptional circumstances after evaluating the likelihood of success on the merits and the ability of the party to articulate his claims pro se in light of the complexity of the legal issues involved; the factors must be viewed together. Terrell v. Brewer , 935 F.2d 1015, 1017 (9th Cir. 1991) (citing Wilborn v. Escalderon , 789 F.2d 1328, 1331 (9th Cir. 1986)).

         Here, this Court cannot require an attorney to represent plaintiff. Mallard v. United States District Court for the Southern District of Iowa , 490 U.S. 296, 298 (1989). Without a reasonable method of securing and compensating counsel, this court will seek volunteer counsel only in the most serious and exceptional cases.

         In light of the early stage of the proceedings and Plaintiff's repeated failure even to complete the process of paying the filing fee or filing a completed application to proceed in forma pauperis, the Court cannot make a determination that Plaintiff is likely to succeed on the merits. Terrell , 935 F.2d at 1017. There is no showing that Plaintiff is unable to proceed in view of the nature of the case, which concerns Plaintiff's treatment in an ambulance.

         The Court does not find the required exceptional circumstances.

         Accordingly, Plaintiff's motion for the appointment of counsel, filed December 7, 2006, IS DENIED.

         IT IS SO ORDERED.