Naylor v. Allenby et al

Filing 40

ORDER DENYING 37 Motion to Appoint Counsel, signed by Magistrate Judge Michael J. Seng on 04/28/2015. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TROY MITCHELL NAYLOR,

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Plaintiff,
v.
CLIFF ALLENBY, et al.,

1:11-cv-01649-LJO-MJS (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 37)

Defendant(s).

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On April 20, 2015, Plaintiff filed a motion seeking the appointment of counsel.

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Plaintiff does not have a constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an

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attorney to represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1), Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances, the Court may request the voluntary assistance of

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counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a

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reasonable method of securing and compensating counsel, the Court will seek volunteer

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counsel only in the most serious and exceptional cases.

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of

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In determining whether

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

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citations omitted).

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Plaintiff seeks the appointment of counsel because Defendant Duvall has advised

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that criminal charges may be brought against Plaintiff because property containing child

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pornography was seized from Plaintiff’s room at Coalinga State Hospital. (ECF No. 35.)

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The Court does not here find any of the required exceptional circumstances for
appointment of counsel.

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Plaintiff’s constitutional right to counsel in any potential criminal matter is separate

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and apart from the Court’s power to appoint counsel in this matter. Nothing before the

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Court suggests that pursuit of the instant case will impact the potential criminal case

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against Plaintiff.

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Even if it is assumed that Plaintiff is not well versed in the law and that he has

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made serious allegations which, if proved, would entitle him to relief, his case is not

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exceptional. This Court is faced with similar cases almost daily. Further, at this early
stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to
succeed on the merits, and based on a review of the record in this case, the Court does
not find that Plaintiff cannot adequately articulate his claims. Rand, 113 F.3d at 1525.
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:

April 28, 2015

/s/

UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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