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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