Felton v. Lopez, et al.
Filing
62
ORDER Denying 59 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 01/29/2015. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KELVIN FELTON,
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Plaintiff,
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v.
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J. LOPEZ, et al.,
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1:12-cv-01066 AWI-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 59)
Defendants.
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On January 26, 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, Rand v. Rowland,
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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
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Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain
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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to
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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
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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Plaintiff argues that he needs assistance to participate fully in discovery. This alone does
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not make Plaintiff’s case exceptional under the Ninth Circuit’s standards discussed above. At this
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stage in the proceedings, the court cannot make a determination that Plaintiff is likely to succeed
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on the merits. Plaintiff has been granted thirty days in which to file an Amended Complaint
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containing all of the claims he seeks to pursue. Thus, there is presently no operative complaint on
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record in this case. Moreover, based on the court’s record, the court does not find that Plaintiff
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cannot adequately articulate his claims or respond to the court=s orders. Plaintiff is advised that
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he is not precluded from renewing the motion for appointment of counsel at a later stage of the
proceedings.
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:
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January 29, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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