Bryant v. Gallagher et al

Filing 116

ORDER Denying Plaintiff's 105 Motion to Appoint Counsel; ORDER Granting Plaintiff's 108 Motion for a Docket Sheet and Directing Clerk's Office to Provide Plaintiff with Copy of Docket signed by Magistrate Judge Barbara A. McAuliffe on 07/17/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN DARNELL BRYANT,

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Plaintiff,
v.
GALLAGHER, et al.,
Defendants.

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Case No.: 1:11-cv-00446-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL (ECF No. 105)
ORDER GRANTING PLAINTIFF’S MOTION FOR
A DOCKET SHEET AND DIRECTING CLERK’S
OFFICE TO PROVIDE PLAINTIFF WITH COPY
OF DOCKET (ECF No. 108)

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On March 18, 2013, Plaintiff filed a motion seeking the appointment of counsel. (ECF No.

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105.) Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent

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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional

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circumstances the court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success of the

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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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. At the time

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Plaintiff filed his motion, he requested the appointment of counsel because he was housed in the

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California Medical Facility, Department of Mental Health (“DMH”) and placed on suicide watch.

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Subsequent to that time, Plaintiff was transferred from that facility to California State Prison –

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

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

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with similar cases almost daily. Further, Plaintiff is no longer housed at DMH. At this stage in the

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proceedings, the court cannot make a determination that plaintiff is likely to succeed on the merits, and

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based on a review of the record in this case, the court does not find that plaintiff cannot adequately

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articulate his claims. Id.

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Accordingly, Plaintiff’s motion for the appointment of counsel is HEREBY DENIED without

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prejudice. However, Plaintiff also filed a motion for a docket sheet and a request for status of this case

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on May 2, 2013. (ECF No. 108.) Based on his transfers to different facilities, Plaintiff’s request for a

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copy of the docket sheet is GRANTED. The Clerk’s Office is DIRECTED to send Plaintiff a copy of

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the docket.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 17, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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