Nicklas v. Kokor et al

Filing 53

ORDER DENYING Plaintiff's 51 Motion for Limited Purpose Legal Assistance signed by Magistrate Judge Erica P. Grosjean on 8/23/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVE ROCKY NICKLAS,
Plaintiff,

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v.

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W. KOKOR and MS. MATA,

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Case No. 1:18-cv-00119-LJO-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR LIMITED PURPOSE LEGAL
ASSISTANCE

Defendants.

(ECF NO. 51)

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Steve Rocky Nicklas (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 19, 2019, Plaintiff

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filed a motion for limited purpose legal assistance. (ECF No. 51). Plaintiff asks for appointment

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of pro bono counsel to assist Plaintiff during conference calls with Defendants and with the

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Court. Alternatively, Plaintiff asks the Court to allow inmate Felipe Garcia to assist Plaintiff

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during conference calls with Defendants and with the Court. (Id.).

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

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952

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(9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28

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U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,
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490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances

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the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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113 F.3d at 1525.
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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“exceptional circumstances exist, a 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. (citation and internal quotation marks omitted).
The Court will not order appointment of limited purpose counsel at this time. Plaintiff’s

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current complaint (which was apparently drafted with the assistance of another inmate)

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adequately describes the claims Plaintiff is asserting in this case. Moreover, the Court has

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reviewed the record in this case, and at this time the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits of his claims.
As to Plaintiff’s request to have inmate Felipe Garcia present during conference calls and

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hearings, as it does not appear that inmate Felipe Garcia has an active state bar license, he may

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not represent Plaintiff in court proceedings. Cal. Bus. & Prof. Code § 6125.
Moreover, the next conference in this case is scheduled in September of 2020. The Court

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will not appoint limited purpose counsel, or order an institution to allow inmate assistance, for a

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conference that is over a year away. Plaintiff may renew this motion when the telephonic trial

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confirmation hearing is less than two months away.
As to Plaintiff’s request for assistance during his phone conversations with Defendants,

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the Court notes that, at this time, Plaintiff is under no obligation to discuss his case with

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Defendants via telephone.

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For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for limited purpose

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legal assistance (ECF No. 51) is DENIED without prejudice. Plaintiff may renew this motion

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when the telephonic trial confirmation hearing is less than two months away.

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IT IS SO ORDERED.
Dated:

August 23, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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