Rodriguez v. Isaac

Filing 12

ORDER DENYING 10 Motion for Polygraph Test and ORDER DENYING 11 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 12/13/2012. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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NOEL RODRIGUEZ,

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Plaintiff,

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1:11-cv-01914-AWI-GSA (PC)
ORDER DENYING MOTIONS FOR
POLYGRAPH TEST AND
APPOINTMENT OF COUNSEL

vs.
ISAAC,

( Docs. 10, 11.)
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Defendant.

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________________________________/

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I.

BACKGROUND

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Noel Rodriguez (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on November 17, 2011. (Doc.

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1.) On December 6, 2012, Plaintiff filed motions for the court to assist him in taking a lie

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detector test, and to appoint counsel. (Docs. 10, 11.)

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II.

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MOTION FOR ASSISTANCE WITH LIE DETECTOR TEST
The expenditure of public funds on behalf of an indigent litigant is proper only when

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authorized by Congress. See Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989) (citations omitted).

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The in forma pauperis statute does not authorize the expenditure of public funds for the purpose

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sought by plaintiff in the instant motion. Therefore, Plaintiff’s motion for assistance in taking a

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lie detector test shall be denied, and any costs in arranging and conducting a lie detector test

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shall have to be paid by the parties.

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III.

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MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff 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
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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However,

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in certain exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to section 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

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

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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. At

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this early stage in the proceedings, the court cannot make a determination that plaintiff is likely

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to succeed on the merits. Plaintiff’s First Amended Complaint, filed on March 9, 2012, awaits

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the Court’s screening required under 28 U.S.C. 1915. Thus, to date the Court has not found any

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cognizable claims in Plaintiff’s complaint for which to initiate service of process, and no other

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parties have yet appeared. Moreover, based on a review of the record in this case, the Court

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does not find that Plaintiff cannot adequately articulate his claims. Therefore, Plaintiff’s

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motion shall be denied without prejudice to renewal of the motion at a later stage of the

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proceedings.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion for court assistance to take a lie detector test, filed on
December 6, 2012, is DENIED; and

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Plaintiff’s motion for appointment of counsel, filed on December 6, 2012, is
DENIED without prejudice.

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IT IS SO ORDERED.
Dated:
6i0kij

December 13, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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