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)

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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

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