Blackmon v. Benavides et al

Filing 17

ORDER DENYING 16 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 10/18/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:16-cv-01773-DAD-GSA-PC

TED BLACKMON,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 16.)

vs.
M. JUNIOUS, et al.,
Defendants.

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On September 18, 2017, Plaintiff filed a motion seeking the appointment of counsel.

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

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Rowland, 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 Court

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

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
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Here, the Court does not find the required exceptional circumstances. 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. Plaintiff=s Complaint was dismissed on August 28, 2017, for failure to

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state a claim, with leave to amend. To date, Plaintiff has not filed an amended complaint.

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Thus, there is no complaint on record in this case for which the Court has found cognizable

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claims. It is too early for service of process, and no other parties have yet appeared. Moreover,

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based on the record for this case, the Court finds that Plaintiff can adequately articulate his

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claims. Plaintiff is advised that he is not precluded from renewing the motion for appointment

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of counsel at a later stage of the proceedings. Therefore, the motion for reconsideration shall be

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denied.
Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of
counsel is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

October 18, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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