Hall v. Frauenheim et al

Filing 44

ORDER DENYING, Without Prejudice, 40 Plaintiff's Third Motion for Appointment of Counsel signed by Magistrate Judge Stanley A. Boone on 5/4/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD B. HALL,

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Plaintiff,
v.
SCOTT FRAUENHEIM, et al.,

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Defendants.

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Case No.: 1:16-cv-00263-AWI-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S THIRD MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 40]

Plaintiff Richard B. Hall is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s third motion for appointment of counsel, filed March
31, 2017.

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Although Plaintiff filed a notice of appeal on March 31, 2017, such appeal does not divest this

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Court of jurisdiction because judgment has not been entered and no appealable order has been issued.

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See Estate v. Conners by Meredith v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993) (notice of appeal

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from a nonappealable order does not divest the district court of jurisdiction); see also Nascimento v.

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Dummer, 508 F.3d 905 (9th Cir. 2007) (“When a Notice of Appeal is defective in that it refers to a

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non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and so the

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ordinary rule that the district court cannot act until the mandate has issued on the appeal does not

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apply.”)
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As Plaintiff was previously advised, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot

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require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States

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

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted).
In the present case, the Court does not find the required exceptional circumstances. Plaintiff

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contends that his classification as a participant in the Developmental Disability Program has rendered

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him unable to effectively prosecute this action. While Plaintiff has alleged difficulty in his potential

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ability to articulate his claims pro se due to his disability, the Court does not find that the exceptional

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factors necessary to justify appointment of counsel exist in this case, at the present time.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that would warrant a request for voluntary

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assistance of counsel. In addition, Plaintiff’s current motion demonstrates that Plaintiff (and/or his

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current inmate assistant) understands the process and how to file documents. Furthermore, the Court

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cannot evaluate the likelihood of success of the merits as Plaintiff’s complaint was dismissed, with

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leave to amend, for failure to comply with Federal Rule of Civil Procedure 8. The record in this case

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demonstrates sufficient writing ability and legal knowledge to articulate the claims asserted, even if

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such filings are done with the assistance of other inmates. In addition, the exhibits attached to

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Plaintiff’s demonstrate that Plaintiff has assistance under the Developmental Disability Program to

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help with access to the law library access and materials necessary for court filings. Accordingly,

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Plaintiff’s third motion for appointment of counsel is denied, without prejudice.

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IT IS SO ORDERED.

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Dated:

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May 4, 2017
UNITED STATES MAGISTRATE JUDGE

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