Kinder v. Merced County

Filing 27

ORDER DENYING 26 Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 1/31/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BOBBY LEE KINDER, JR.,

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Plaintiff,

CASE NO. 1:16-cv-01311-MJS (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
ECF NO. 26
MERCED COUNTY, et al.,

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Defendants.

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

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rights action brought pursuant to 42 U.S.C. § 1983. On December 19, 2016, Plaintiff’s

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complaint was dismissed for failure to state a claim, and the action was closed. (ECF

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Nos. 19, 20.) Plaintiff appealed. (ECF No. 23.)

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Before the Court is Plaintiff’s January 27, 2017 motion to appoint counsel. (ECF

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No. 26.) To the extent Plaintiff desires counsel on appeal, he must file his request in the

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court of appeals.

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To the extent Plaintiff requests counsel in this closed action, he is advised that he

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

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

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represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1), Mallard v. United States District

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Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In certain exceptional

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

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section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a reasonable method of

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securing and compensating counsel, the court will seek volunteer counsel only in the

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most serious and exceptional cases. In determining whether Aexceptional circumstances

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exist, the district court must evaluate both the likelihood of success of the merits [and]

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

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legal issues involved.@ Id. (internal quotation marks and citations omitted).

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In the present case, the court 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 he

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has made serious allegations which, if proved, would entitle him to relief, his case is not

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exceptional. This court is faced with similar cases almost daily. Further, as the action has

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been dismissed for failure to state a claim, the court cannot make a determination that

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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.

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Dated:

January 31, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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