McRae v. Dikran et al

Filing 12

ORDER DENYING 11 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 11/9/2017. (Sant Agata, S)

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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-01066 GSA (PC) MICHAEL SCOTT MCRAE, Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL v. (Document# 11) BAIRAMIAN DIKRAN, et al., Defendants. 16 17 On November 6, 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. 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 In determining whether 1 In the present case, the court does not find the required exceptional circumstances. At this 2 early stage in the proceedings, the court cannot make a determination that plaintiff is likely to 3 succeed on the merits. Plaintiff’s Complaint was dismissed on March 28, 2017, for failure to 4 state a claim with leave to amend, and his First Amended Complaint, filed on May 1, 2017, 5 awaits screening by the court. (ECF Nos. 9, 10.) To date, the court has not found any cognizable 6 claims in plaintiff’s complaints for which to initiate service of process, and no other parties have 7 yet appeared. Plaintiff’s medical claims are not complex. Moreover, based on a review of the 8 record in this case, the court finds that plaintiff can adequately articulate his claims. Therefore, 9 plaintiff’s motion shall be denied without prejudice to renewal of the motion at a later stage of the 10 11 12 proceedings. For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY DENIED, without prejudice. 13 14 15 IT IS SO ORDERED. Dated: November 9, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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