(PC) Milton v. Trate et al

Filing 8

ORDER DENYING #7 Motion to Appoint Counsel signed by Magistrate Judge Erica P. Grosjean on 9/16/2022. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
KYLE DAVID MILTON,
12
Plaintiff,
13
v.
14
B.M. TRATE, et al.,

Case No. 1:22-cv-00988-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF PRO BONO
COUNSEL, WITHOUT PREJUDICE
(ECF No. 7)

15
Defendants.
16
17
18
19
20

Kyle David Milton (“Plaintiff’) is incarcerated at Atwater U.S. Penitentiary and is
proceeding pro se and in forma pauperis in this civil rights action.
On September 14, 2022, Plaintiff filed a motion for appointment of pro bono counsel.

21

(ECF No. 7). Plaintiff asks for appointment of counsel because he cannot afford counsel; because

22

the issues involved in this case are complex; because he cannot adequately represent himself in

23

this action; because he has limited access to legal materials; because he has no ability to

24

investigate the facts of this case; because he has written letters to non-profit legal aid agencies, to

25

no avail; because he has an extremely limited knowledge of the law; and because this is a

26

meritorious case.

27
28

Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952
1

1

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

2

U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

3

490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request

4

the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

5

Without a reasonable method of securing and compensating counsel, the Court will seek

6

volunteer counsel only in the most serious and exceptional cases. In determining whether

7

“exceptional circumstances exist, a district court must evaluate both the likelihood of success of

8

the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

9

complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted).

10

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

11

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

12

Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can

13

adequately articulate his claims.

14
15
16
17

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.

18
19
20

IT IS SO ORDERED.
Dated:

September 16, 2022

/s/
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
2