Gradford v. McDougall et al

Filing 13

ORDER DENYING 12 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 7/27/2107. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM J. GRADFORD,

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Plaintiff,
v.
McDOUGALL, et al.,

1:17-cv-00201-DAD-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 12)

Defendants.

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On July 19, 2017, plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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

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

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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. The Complaint awaits the court’s screening required under 28 U.S.C.

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1915. Thus, to date the court has not found any cognizable claims in plaintiff=s Complaint for

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which to initiate service of process, and no other parties have yet appeared. Plaintiff asserts that

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he has mental and physical handicaps, including limited learning skills, and he is unable to afford

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an attorney. Plaintiff also asserts that he was told that the media has reported about his cases.

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This does not make plaintiff’s case exceptional under the law. Plaintiff’s claims, based on

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retaliation and interference with mail, do not appear complex. Moreover, a review of the record

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in this case shows that plaintiff is responsive, adequately communicates, and is able to articulate

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his claims. The court notes that plaintiff has filed other cases pro se and appears able to navigate

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the federal court system. Therefore, plaintiff=s motion shall be denied without prejudice to

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renewal of the motion at a later stage of the 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:

July 27, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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