Payan v. Tate et al
Filing
61
ORDER DENYING Motion for Appointment of Counsel 59 , signed by Magistrate Judge Dennis L. Beck on 4/30/15: The 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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MICHAEL J. PAYAN,
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Plaintiff,
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v.
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H. TATE, et al.,
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1:13-cv-00807-LJO-DLB (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document #59)
Defendants.
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On April 27, 2015, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff
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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113
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F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent Plaintiff
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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
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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
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volunteer counsel only in the most serious and exceptional cases. In determining whether
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Aexceptional 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. Even
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if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations
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which, if proved, would entitle him to relief, his case is not exceptional. This Court is faced with
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similar cases almost daily. Further, at this early stage in the proceedings, the Court cannot make
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a determination that plaintiff is likely to succeed on the merits, and based on a review of the
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record in this case, the Court does not find that Plaintiff cannot adequately articulate his claims.
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Id.
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Plaintiff also requests counsel because he is a validated gang member housed in the
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Security Housing Unit, and is therefore prevented from communicating with other inmates.
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However, this does not require the appointment of counsel. Moreover, the Court does not have
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authority to order prison officials to take any action, including ordering them to allow Plaintiff to
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locate and communicate with other inmates. This is especially true in situations where
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communication may impact institutional safety and security. Plaintiff may utilize the discovery
procedures allowed under the Federal Rules of Civil Procedure in attempting to obtain the
information he seeks.
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:
/s/ Dennis
April 30, 2015
UNITED STATES MAGISTRATE JUDGE
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L. Beck
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