Crisp v. Wasco State Prison et al

Filing 12

ORDER denying 9 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 7/25/2013. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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OBIE CRISP,

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1:13-cv-00816 GSA (PC)
Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

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vs.

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WASCO STATE PRISON, et al.,
(MOTION #9)

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Defendants.

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________________________________/

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On July 18, 2013, 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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“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. On July 10, 2013, Plaintiff requested leave to file an amended

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complaint, and on July 11, 2013, the court issued an order informing Plaintiff he has leave to

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file an amended complaint. (Docs.6, 7.) Thus, at this stage of the proceedings, the court

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expects Plaintiff to file an amended complaint which will replace the original complaint. After

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Plaintiff files the amended complaint, the court is required to screen it to determine if Plaintiff

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states any cognizable claims. 28 U.S.C. 1915A. Until the screening process is completed, the

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court cannot make any determination about the likelihood of Plaintiff’s success on the merits.

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Moreover, based on a review of the record in this case, the court does not find that plaintiff

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cannot adequately articulate his claims. Therefore, Plaintiff’s motion shall be denied without

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prejudice to renewal of the motion at a later stage of the proceedings.

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For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.
Dated:
220hhe

July 25, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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