Turner v. Porter et al

Filing 27

ORDER denying 25 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 10/4/2017. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15

1:16-cv-00542-GSA (PC)

DEDRIC TURNER,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document# 25)

M. PORTER, et al.,
Defendants.

16
17

On September 29, 2017, plaintiff filed a motion seeking the appointment of counsel.

18

Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland,

19

113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent

20

plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the

21

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

22

exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

23

section 1915(e)(1). Rand, 113 F.3d at 1525.

24

Without a reasonable method of securing and compensating counsel, the court will seek

25

volunteer counsel only in the most serious and exceptional cases. In determining whether

26

“exceptional circumstances exist, the district court must evaluate both the likelihood of success of

27

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

28

complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
1

1

In the present case, the court does not find the required exceptional circumstances.

At

2

this stage in the proceedings, the court cannot make a determination that plaintiff is likely to

3

succeed on the merits. Defendant’s motion to dismiss the complaint as barred by Heck v.

4

Humphrey, 512 U.S. 477, 483 (1994) is now pending and may dispose of the case. Moreover,

5

based on the record in this case, the court finds that plaintiff is able to adequately articulate his

6

claims. Further, the legal issue in this case B whether defendant received due process before he

7

was assessed a credit loss -- is not complex. Therefore, plaintiff=s motion shall be denied without

8

prejudice to renewal of the motion at a later stage of the proceedings.

9
10

For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.

11
12
13

IT IS SO ORDERED.
Dated:

October 4, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2