Nyland v. Calaveras County Sheriff's Jail

Filing 41

ORDER DENYING 39 Motion to Appoint Counsel; ORDER GRANTING Plaintiff's Request for Copies of Local Rules; and ORDER Directing Clerk of Court to Send Plaintiff Current Copies of the Local Rules signed by Magistrate Judge Gary S. Austin on 9/8/2017. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 15 v. ORDER FOR CLERK TO SEND PLAINTIFF COPIES OF SELECTED LOCAL RULES CALAVERAS COUNTY SHERIFF’S JAIL, et al., Defendants. 16 17 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF No. 39.) Plaintiff, 13 14 1:15-cv-00886-GSA (PC) JON L. NYLAND, I. BACKGROUND 18 Jon L. Nyland (“Plaintiff”) is a former prisoner proceeding pro se and in forma pauperis 19 with this civil rights action pursuant to 42 U.S.C. § 1983. On August 30, 2017, Plaintiff filed a 20 motion seeking the appointment of counsel. (ECF No. 39.) Plaintiff also requested a copy of the 21 Local Rules. (Id.) 22 II. MOTION FOR APPOINTMENT OF COUNSEL 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 24 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 25 represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for 26 the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 27 certain exceptional circumstances the court may request the voluntary assistance of counsel 28 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 1 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success of 4 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the court does not find the required exceptional circumstances. At this 7 stage of the proceedings the court cannot make a determination that Plaintiff is likely to succeed 8 on the merits. The defendants have been served, but none of them have filed an answer or 9 otherwise appeared in the case. Based on the record in this case the court finds that Plaintiff can 10 adequately articulate his claims and respond to court orders. Further, the legal issues in this case 11 B whether defendants retaliated against Plaintiff, denied him due process, and interfered with his 12 legal mail B do not appear complex. Therefore, Plaintiff=s motion shall be denied without 13 prejudice to renewal of the motion at a later stage of the proceedings. 14 III. REQUEST FOR COPY OF LOCAL RULES 15 Plaintiff requests a copy of the Local Rules for the United States District Court, Eastern 16 District of California. Plaintiff asserts that he is presently confined, as a condition of parole, at a 17 residential treatment facility where there is no law library. The court finds good cause to provide 18 Plaintiff with copies of selected Local Rules pertaining to prisoner civil rights cases. Therefore, 19 the Clerk shall be directed to send Plaintiff current copies of the following Local Rules: 20 21 22 23 24 25 26 27 28 110 Sanctions for Noncompliance with Rules 130 General Format of Documents 131 Counsel Identification and Signatures 134 Time of Filing 135 Service of Documents During Action 142 Affidavits 144 Extending and Shortening Time 162.1 Examination and Challenges of Trial Jury- Civil and Criminal 163 Jury Instructions and Verdicts- Civil and Criminal Actions 182 Attorneys - Appearance and Withdrawal 183 Persons Appearing In Propria Persona 201 Jury Demand 220 Changed Pleadings 230 Civil Motion Calendar and Procedure 2 1 231 Temporary Restraining Order- Preliminary Injunction 250.1 Depositions 250.2 Interrogatories 250.3 Production of Documents 250.4 Requests for Admission 260 Motions for Summary Judge or Summary Adjudication 281 Pretrial Statements 285 Trial Briefs 303 Role of Magistrate Judge and Procedure for Resolving General Pretrial Matters in Criminal and Civil Actions 304 Magistrate Judges’ Authority in Excepted Pretrial Matters 305 Procedures for the Disposition of Civil Actions on Consent of the Parties 2 3 4 5 6 7 8 9 IV. CONCLUSION 10 Based on the foregoing, IT IS HEREBY ORDERED that: 11 1. Plaintiff=s motion for the appointment of counsel, filed on August 30, 2017, is DENIED, without prejudice; 12 13 2. Plaintiff’s request for copies of Local Rules is GRANTED; and 14 3. The Clerk of Court is directed to send Plaintiff current copies of the selected Local Rules listed above in this order. 15 16 IT IS SO ORDERED. 17 18 Dated: September 8, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3

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