United States District Court, D. Montana, Helena Division
Johnston, United States Magistrate Judge
Andrew Conner, an inmate proceeding in forma pauperis and
without counsel, filed a Motion for the Appointment of
Counsel (Doc. 48) and an Objection to the Court's Denial
of his Motion for Examination (Doc. 49), which the Court has
construed as a motion for reconsideration.
MOTION FOR APPOINTMENT OF COUNSEL
Mr. Conner's second motion to appoint counsel.
See (Doc. 26.) As set forth in the Court's Order
denying the first motion, no one, including incarcerated
prisoners, has a constitutional right to be represented by
appointed counsel when they file a civil lawsuit under 42
U.S.C. § 1983. (Doc. 35 (citing Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997)),
withdrawn on other grounds, 154 F.3d 952, 962 (9th
Cir. 1998). A judge may only request counsel for an indigent
plaintiff under “exceptional circumstances.” 28
U.S.C. § 1915(e)(1); Terrell v. Brewer, 935
F.2d 1015, 1017 (9th Cir. 1991).
A finding of exceptional circumstances requires an evaluation
of both ‘the likelihood of success on the merits and
the ability of the petitioner to articulate his claims pro se
in light of the complexity of the legal issues involved.'
Neither of these factors is dispositive and both must be
viewed together before reaching a decision.
Terrell, 935 F.2d at 1017 (citing Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)
(citations omitted). Mr. Conner still does not meet this
an Eighth Circuit case, Mr. Conner argues that the Court
should consider the factual complexity of the case, his
ability to investigate, the existence of conflicting
testimony, and Mr. Conner's ability to present his case
in light of the complexity of the legal issues. (Doc. 48 at 4
(citing Abdullah v. Gunter, 949 F.2d 1032 at 1035
(9th Cir. 1991).).) As set forth above, however, in the Ninth
Circuit, the Court must consider Mr. Conner's likelihood
of success on the merits and his ability to articulate his
claims in light of the complexity of the legal issues.
Terrell, 935 F.2d at 1017.
Conner has still not demonstrated a likelihood of success on
the merits or his inability to articulate his claims pro se.
His filings are articulate and demonstrate an understanding
of the issues involved. The Court will not appoint counsel at
this point in the litigation.
OBJECTIONS TO DENIAL OF EXAMINATION
Conner has filed an objection to the Court's January 10,
2017 Order denying his Motion for Order for an Examination.
(Doc. 49.) The Court construes this filing as a motion for
reconsideration and as such it will be denied.
Local Rules for this Court require that a party must first
move for leave to file a motion for reconsideration before
filing a motion for reconsideration. A motion for leave to
file a motion for reconsideration must specifically meet at
least one of the following two criteria:
(1) (A) the facts or applicable law are materially different
from the facts or applicable law that the parties presented
to the Court before entry of the order for which
reconsideration is sought, and
(B) despite the exercise of reasonable diligence, the party
applying for reconsideration did not know such fact or law