Stratmon v. Tucker et al
Filing
66
ORDER DENYING Plaintiff's Second Motion for the Appointment of Counsel 65 , signed by Magistrate Judge Stanley A. Boone on 9/5/17: Motion is DENIED without prejudice. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID L. STRATMON, JR.,
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Plaintiff,
v.
ANGELA MORRIS,
Defendant.
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Case No.: 1:12-cv-01837-DAD-SAB (PC)
ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR THE APPOINTMENT OF
COUNSEL
[ECF No. 65]
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Plaintiff David L. Stratmon, Jr. is a federal prisoner proceeding pro se in this civil rights action
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pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
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(1971). This matter proceeds on Plaintiff’s claim that Defendant Morris interfered with his receipt of
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incoming mail and failed to notify him that his mail was being withheld. This matter was referred to
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the undersigned pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.
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Currently before the Court is Plaintiff’s second motion for the appointment of counsel. (ECF
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No. 65.) 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 “exceptional
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circumstances exist, a district court must evaluate both the likelihood of success of the merits [and] the
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ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues
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involved.” Id. (internal quotation marks and citations omitted).
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Plaintiff seeks the appointment of counsel because he is unable to afford counsel, the legal
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issues are complex, his legal documents and reference materials have been destroyed and confiscated,
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and he has limited knowledge of the law. In the present case, the Court does not find that exceptional
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circumstances exist which would warrant a request for the voluntary assistance of counsel.
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Circumstances common to most prisoners, such as non-attorney status and limited law library access,
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do not establish exceptional circumstances. Further, the record reflects that Plaintiff is adequately able
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to articulate his claim, and the issues raised are not complex. As discovery is underway, at this stage,
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the Court does not find any likelihood of success on the merits.
Accordingly, Plaintiff’s second motion for appointment of counsel is denied, without
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prejudice.
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IT IS SO ORDERED.
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Dated:
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September 5, 2017
UNITED STATES MAGISTRATE JUDGE
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