Kinder v. Merced County
ORDER DENYING 26 Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 1/31/17. (Marrujo, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
BOBBY LEE KINDER, JR.,
CASE NO. 1:16-cv-01311-MJS (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
ECF NO. 26
MERCED COUNTY, et al.,
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. On December 19, 2016, Plaintiff’s
complaint was dismissed for failure to state a claim, and the action was closed. (ECF
Nos. 19, 20.) Plaintiff appealed. (ECF No. 23.)
Before the Court is Plaintiff’s January 27, 2017 motion to appoint counsel. (ECF
No. 26.) To the extent Plaintiff desires counsel on appeal, he must file his request in the
court of appeals.
To the extent Plaintiff requests counsel in this closed action, he is advised that he
does not have a constitutional right to appointed counsel in this action, Rand v. Rowland,
113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to
represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1), Mallard v. United States District
Court for the Southern District of Iowa, 490 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. However, without a reasonable method of
securing and compensating counsel, the court will seek volunteer counsel only in the
most serious and exceptional cases. In determining whether Aexceptional circumstances
exist, the district court must evaluate both the likelihood of success of the merits [and]
the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the
legal issues involved.@ Id. (internal quotation marks and citations omitted).
In the present case, the court does not find the required exceptional
circumstances. Even if it is assumed that plaintiff is not well versed in the law and that he
has made serious allegations which, if proved, would entitle him to relief, his case is not
exceptional. This court is faced with similar cases almost daily. Further, as the action has
been dismissed for failure to state a claim, the court cannot make a determination that
plaintiff is likely to succeed on the merits. And, based on a review of the record in this
case, the court does not find that plaintiff cannot adequately articulate his claims. Id.
For the foregoing reasons, plaintiff=s motion for the appointment of counsel is
HEREBY DENIED, without prejudice.
IT IS SO ORDERED.
January 31, 2017
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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