Gradford v. McDougall et al

Filing 37

ORDER denying 36 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 4/5/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:17-cv-00201-DAD-GSA (PC)

WILLIAM J. GRADFORD,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document# 36)

Mc DOUGALL, et al.,
Defendants.

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On April 2, 2018, 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, Plaintiff argues that he fears retaliation, has physical and mental

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disabilities, and is not trained in the law. This alone does not make Plaintiff’s case exceptional.

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While the Court has found that Plaintiff’s complaint states claims under § 1983 against

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defendants Tiexiera and McCarthy for retaliation in violation of the First Amendment,” this

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finding is not a determination that Plaintiff is likely to succeed on the merits. (ECF No. 19 at

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1:22-24.) Plaintiff’s retaliation claims do not appear complex, and based on a review of the
record in this case, it appears that Plaintiff can adequately articulate his claims and respond to
court orders. Thus, the Court does not find the required exceptional circumstances, and Plaintiff’s
motion shall be denied without prejudice to 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
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DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

April 5, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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