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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 DAVID L. STRATMON, JR., 9 10 11 12 Plaintiff, v. ANGELA MORRIS, Defendant. 13 ) ) ) ) ) ) ) ) ) ) Case No.: 1:12-cv-01837-DAD-SAB (PC) ORDER DENYING PLAINTIFF’S SECOND MOTION FOR THE APPOINTMENT OF COUNSEL [ECF No. 65] 14 15 Plaintiff David L. Stratmon, Jr. is a federal prisoner proceeding pro se in this civil rights action 16 pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 17 (1971). This matter proceeds on Plaintiff’s claim that Defendant Morris interfered with his receipt of 18 incoming mail and failed to notify him that his mail was being withheld. This matter was referred to 19 the undersigned pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. 20 Currently before the Court is Plaintiff’s second motion for the appointment of counsel. (ECF 21 No. 65.) Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent 23 Plaintiff pursuant to 28 U.S.C.§ 1915(e)(1), Mallard v. United States District Court for the Southern 24 District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in certain exceptional 25 circumstances the Court may request the voluntary assistance of counsel pursuant to section 26 1915(e)(1). Rand, 113 F.3d at 1525. 27 Without a reasonable method of securing and compensating counsel, the Court will seek 28 volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional 1 1 circumstances exist, a district court must evaluate both the likelihood of success of the merits [and] the 2 ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 3 involved.” Id. (internal quotation marks and citations omitted). 4 Plaintiff seeks the appointment of counsel because he is unable to afford counsel, the legal 5 issues are complex, his legal documents and reference materials have been destroyed and confiscated, 6 and he has limited knowledge of the law. In the present case, the Court does not find that exceptional 7 circumstances exist which would warrant a request for the voluntary assistance of counsel. 8 Circumstances common to most prisoners, such as non-attorney status and limited law library access, 9 do not establish exceptional circumstances. Further, the record reflects that Plaintiff is adequately able 10 to articulate his claim, and the issues raised are not complex. As discovery is underway, at this stage, 11 the Court does not find any likelihood of success on the merits. Accordingly, Plaintiff’s second motion for appointment of counsel is denied, without 12 13 prejudice. 14 15 IT IS SO ORDERED. 16 Dated: 17 September 5, 2017 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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