Gary v. Kincaid et al

Filing 19

ORDER DENYING Plaintiff's Motion for Counsel and Service of Summons 18 , signed by Magistrate Judge Barbara A. McAuliffe on 1/10/2019: Motion 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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REGINALD A. GARY,

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Plaintiff,

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v.

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KINCAID, et al.,

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Case No. 1:18-cv-00612-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR COUNSEL AND SERVICE OF
SUMMONS
(ECF No. 18)

Defendants.

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Plaintiff Reginald A. Gary (“Plaintiff”) is a civil detainee proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is

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Plaintiff’s second motion for appointment of counsel, and a request for summons and service.

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(ECF No. 18.)

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Plaintiff argues that the law library at Coalinga State Hospital, where he is currently

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detained, is not updated with legal books. To use the computers to find case law, searches must

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be completed by case number, and therefore the law library is designed so detainees may not

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litigate cases. Plaintiff also requests that the Clerk of the Court send summons for the defendants,

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so Plaintiff may serve them. (Id.)

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As Plaintiff has been informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to
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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.

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of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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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 on

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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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The Court has considered Plaintiff’s motion for the appointment of counsel, but does not find the

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required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the

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law and that he has made serious allegations which, if proved, would entitle him to relief, his case

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is not exceptional. This Court is faced with similar cases filed by prisoners and civil detainees

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proceeding pro se and in forma pauperis almost daily. These plaintiffs also must conduct legal

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research in law libraries with limited resources and prosecute claims without the assistance of

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counsel.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Plaintiff’s complaint has not been screened. Thus, the

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case does not yet proceed on any cognizable claims. Also, based on a review of the limited record

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in this case, the Court does not find that Plaintiff cannot adequately articulate his claims.

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With respect to his request for service of summons on the defendants, Plaintiff is advised

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that the Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court will direct service of process only after Plaintiff’s complaint has been screened and found

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to state cognizable claims for relief. Once the complaint is screened and found to have stated a

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cognizable claim against any defendant, a copy of the complaint will be sent to Plaintiff with

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service documents to be completed.

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The Court screens complaints in the order in which they are filed and strives to avoid

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delays whenever possible. However, there are hundreds of prisoner civil rights cases presently

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pending before the Court, and delays are inevitable. Plaintiff’s complaint will be screened in due

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course.

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Accordingly, Plaintiff’s motion for counsel and for service of summons, (ECF No. 18), is
HEREBY DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 10, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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