Hayes v. Kernan et al

Filing 37

ORDER Denying 27 28 Motions to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 06/20/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALBERT HAYES,

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Plaintiff,
v.
SCOTT KERNAN, et al.,

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Case No. 1:16-cv-01235-MJS (PC)
ORDER DENYING MOTIONS FOR
APPOINTMENT OF COUNSEL
(ECF Nos. 27 & 28)

Defendant.

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Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights

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action filed pursuant to 42 U.S.C. § 1983. His third amended complaint is pending

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screening.

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On August 23, 2016, this Court denied Plaintiff’s first motion for the appointment

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of counsel. (ECF Nos. 3 & 7.) On April 5, 2017, Plaintiff filed two more motions seeking

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the appointment of counsel. (ECF No. 27 & 28.)

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As Plaintiff was previously advised, he does not have a constitutional right to

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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997),

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and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. '

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1915(e)(1), Mallard v. United States District Court for the Southern District of Iowa, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances the court may request the
voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
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However, without a reasonable method of securing and compensating counsel, the court

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will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether Aexceptional circumstances exist, the district court must evaluate

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both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate

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his claims pro se in light of the complexity of the legal issues involved.@ Id. (internal

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quotation marks and citations omitted).

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In the present case, the court still does not find the required exceptional

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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that

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he has made serious allegations which, if proved, would entitle him to relief, his case is

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not exceptional. This court is faced with similar cases almost daily. Further, at this early

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

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succeed on the merits, and based on a review of the record in this case, the court does

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not find that Plaintiff cannot adequately articulate his claims. Id.
For the foregoing reasons, Plaintiff=s renewed motions for the appointment of
counsel are HEREBY DENIED, without prejudice.
IT IS SO ORDERED.

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Dated:

June 20, 2017

/s/

UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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