Champ Jr. v. Kernan

Filing 23

ORDER DENYING Motion for Appointment of Counsel 22 , signed by Magistrate Judge Gary S. Austin on 4/5/2018: Motion is DENIED, without prejudice. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:17-cv-01327-DAD-GSA (PC)

TYE GLENN CHAMP, JR.,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Plaintiff,
v.

(Document# 22)

SCOTT KERNAN,
Defendant.

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On March 29, 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).

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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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However, in certain

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.

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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 determining whether

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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=s 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.

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Plaintiff asserts that his imprisonment will limit his ability to litigate. This does not make

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his case exceptional under the law. The legal issue in this case B whether defendant improperly

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applied Article I, Sec. 32(a)(1)(A) of the California constitution – does not appear complex.

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Moreover, based on a review of the record in this case, the court finds that plaintiff can

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adequately articulate his claims and respond to court orders. Therefore, plaintiff=s motion shall be

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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
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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