Gutierrez v. Kern County et al

Filing 10

ORDER denying 9 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 1/19/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARIO GUTIERREZ,

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Plaintiff,
v.
KERN COUNTY, et al.,

1:16-cv-01828-GSA-PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 9)

Defendants.

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On January 17, 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. Rowland,

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

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plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the

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Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain

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exceptional 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.

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

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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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In the present case, the court does not find the required exceptional circumstances. At this

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

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succeed on the merits. Plaintiff filed the Complaint on November 8, 2016, just over two months

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ago, and the Complaint awaits the court=s screening required under 28 U.S.C. 1915. Thus, to date

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the Court has not found any cognizable claims in Plaintiff=s Complaint for which to initiate

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service of process, and no other parties have yet appeared. Moreover, based on a review of the

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record in this case, the Court finds that Plaintiff can adequately articulate his claims. Therefore,

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Plaintiff=s motion shall be denied without prejudice to renewal of the motion at a later stage of the

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proceedings.

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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:

January 19, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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