Kelly v. Sao et al

Filing 9

ORDER DENYING Plaintiff's 3 Motion for Appointment of Pro Bono Counsel without prejudice, signed by Magistrate Judge Erica P. Grosjean on 05/22/18. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES CARL KELLY,
Plaintiff,

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v.

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DR. SAO, et al.,

Case No. 1:18-cv-00484-DAD-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF PRO BONO
COUNSEL WITHOUT PREJUDICE
(ECF NO. 3)

Defendants.

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James Kelly (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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filed pursuant to 42 U.S.C. § 1983. On April 9, 2018, Plaintiff filed a motion for appointment of

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pro bono counsel. (ECF No. 3).

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Plaintiff asks for appointment of counsel so that his interests may be protected by
professional assistance. Plaintiff cites to California Rules of Court, Rule 4.551(c)(2).1
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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The Court notes that Rule 4.551(c)(2) applies to habeas corpus proceedings. Plaintiff filed a
§ 1983 action, not a habeas corpus petition. Moreover, Plaintiff filed his case in federal court, not
state court.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952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

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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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“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. (internal quotation marks and citation omitted).

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The Court will not order appointment of pro bono counsel at this time. The Court has

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reviewed the record in this case, and at this time the Court is unable to make a determination that

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Plaintiff is likely to succeed on the merits of his claims. Moreover, while there may be some

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issues, based on the complaint it appears that Plaintiff can adequately articulate his claims.

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Plaintiff is advised that he is not precluded from renewing his motion for appointment of
pro bono counsel at a later stage of the proceedings.
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for appointment of pro
bono counsel is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

May 22, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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