Gradford v. McDougall et al
ORDER DENYING 12 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 7/27/2107. (Jessen, A)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
WILLIAM J. GRADFORD,
McDOUGALL, et al.,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
On July 19, 2017, plaintiff filed a motion seeking the appointment of counsel. Plaintiff
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, 109 S.Ct. 1814, 1816 (1989). However, 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.
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. At this
early stage in the proceedings, the court cannot make a determination that plaintiff is likely to
succeed on the merits. The Complaint awaits the court’s screening required under 28 U.S.C.
1915. Thus, to date the court has not found any cognizable claims in plaintiff=s Complaint for
which to initiate service of process, and no other parties have yet appeared. Plaintiff asserts that
he has mental and physical handicaps, including limited learning skills, and he is unable to afford
an attorney. Plaintiff also asserts that he was told that the media has reported about his cases.
This does not make plaintiff’s case exceptional under the law. Plaintiff’s claims, based on
retaliation and interference with mail, do not appear complex. Moreover, a review of the record
in this case shows that plaintiff is responsive, adequately communicates, and is able to articulate
his claims. The court notes that plaintiff has filed other cases pro se and appears able to navigate
the federal court system. Therefore, plaintiff=s motion shall be denied without prejudice to
renewal of the motion at a later stage of the proceedings.
For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.
July 27, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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