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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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v.

ORDER FOR CLERK TO SEND PLAINTIFF
COPIES OF SELECTED LOCAL RULES

CALAVERAS COUNTY SHERIFF’S
JAIL, et al.,
Defendants.

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 39.)

Plaintiff,

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1:15-cv-00886-GSA (PC)

JON L. NYLAND,

I.

BACKGROUND

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Jon L. Nyland (“Plaintiff”) is a former prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. On August 30, 2017, Plaintiff filed a

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motion seeking the appointment of counsel. (ECF No. 39.) Plaintiff also requested a copy of the

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Local Rules. (Id.)

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II.

MOTION FOR APPOINTMENT OF COUNSEL

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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 for

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the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to 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 of

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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 this

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

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on the merits. The defendants have been served, but none of them have filed an answer or

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otherwise appeared in the case. Based on the record in this case the court finds that Plaintiff can

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adequately articulate his claims and respond to court orders. Further, the legal issues in this case

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B whether defendants retaliated against Plaintiff, denied him due process, and interfered with his

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legal mail B do not appear complex. 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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III.

REQUEST FOR COPY OF LOCAL RULES

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Plaintiff requests a copy of the Local Rules for the United States District Court, Eastern

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District of California. Plaintiff asserts that he is presently confined, as a condition of parole, at a

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residential treatment facility where there is no law library. The court finds good cause to provide

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Plaintiff with copies of selected Local Rules pertaining to prisoner civil rights cases. Therefore,

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the Clerk shall be directed to send Plaintiff current copies of the following Local Rules:

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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
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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

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff=s motion for the appointment of counsel, filed on August 30, 2017, is
DENIED, without prejudice;

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2.

Plaintiff’s request for copies of Local Rules is GRANTED; and

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3.

The Clerk of Court is directed to send Plaintiff current copies of the selected Local
Rules listed above in this order.

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IT IS SO ORDERED.
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Dated:

September 8, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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