Allen v. Meyer et al

Filing 50

ORDER DENYING 49 Motion to Appoint Counsel signed by Magistrate Judge Dennis L. Beck on 7/7/2014. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:09-cv-00729-DLB (PC)

KELVIN ALLEN,

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Plaintiff,

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v.

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

MEYER, et al.,

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(Document# 49)
Defendants.

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On July 2, 2014, plaintiff filed a motion seeking the appointment of counsel. Plaintiff
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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). However, 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.
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
Aexceptional 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).
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In the present case, the court does not find the required exceptional circumstances. Even

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if it is assumed that plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with

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similar cases almost daily. Further, at this early stage in the proceedings, the court cannot make a

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determination that plaintiff is likely to succeed on the merits, and based on a review of the record

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in this case, the court does not find that plaintiff cannot adequately articulate his claims. Id.

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The Ninth Circuit recently remanded this action to this Court with instructions to vacate

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the judgment. Plaintiff contends that he had counsel on appeal and requests that the Court

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appoint the same attorney. However, the issue on appeal was a procedural in nature and did not

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involve the merits of plaintiff’s action. If plaintiff’s counsel on appeal wishes to continue

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representation, an order from this Court is not necessary.

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For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.

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Dated:

/s/ Dennis

July 7, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE
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