Gray v. Johnson et al

Filing 267

ORDER DENYING 252 Plaintiff's Motion to Appoint Counsel, Without Prejudice signed by Magistrate Judge Gary S. Austin on 9/7/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANA GRAY,

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Plaintiff,
vs.

1:13-cv-01473-DAD-GSA-PC
ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL, WITHOUT PREJUDICE
(ECF No. 252.)

ROMERO, et al.,
Defendants.

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Dana Gray (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action
pursuant to 42 U.S.C. § 1983. This case was filed on September 12, 2013. (ECF No. 1.)

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On August 18, 2017, Plaintiff filed a motion for appointment of counsel. (ECF No.

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252.) 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

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represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298 (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

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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 stage of the proceedings, the court cannot make a determination that Plaintiff is likely to

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succeed on the merits. Because Plaintiff=s Fifth Amended Complaint was stricken from the

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record without leave to amend, there is no complaint on record in this case for which the court

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has found cognizable claims. Further, defendant Rebel’s motion to dismiss this case is pending

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and may dispose of the case. Moreover, based on the court’s record, Plaintiff is able to

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adequately articulate her claims and respond to the court’s orders. Plaintiff is advised that she

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is not precluded from renewing the motion for appointment of counsel at a later stage of the

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proceedings. Therefore, Plaintiff’s motion for appointment of counsel, filed on August 18,

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2017, is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

September 7, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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