Haynes v. Sisto et al

Filing 15

ORDER signed by Circuit Judge Susan P. Graber on 1/22/09 ORDERING that pltf's motion for the appointment of counsel is DENIED without prejudice. (Kastilahn, A)

1 2 3 4 5 6 7 8 9 10 11 ROBERT HAYNES, 12 13 vs. 14 D.K. SISTO, WARDEN OF CALIFORNIA STATE PRISON SOLANO, T. SEQUIRA, 15 FACILITY I CAPTAIN, JOHN DOES 1-100 16 Defendants. Plaintiff, 2:08-cv-2177-SPG (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

17 ________________________________/ 18 On October 1, 2008, Plaintiff filed a motion seeking the appointment of counsel.

19 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 20 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds by 154 F.3d 952, 954 21 n.1 (9th Cir. 1998) (en banc), and the court cannot require an attorney to represent plaintiff 22 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 23 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the 24 voluntary assistance of counsel pursuant to § 1915(e)(1). Rand, 113 F.3d at 1525. 25 Without a reasonable method of securing and compensating counsel, the court will

26 seek volunteer counsel only in the most serious and exceptional cases. In determining whether 27 "exceptional circumstances exist, a district court must evaluate both the likelihood of success of 28 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity -1PDF created with pdfFactory trial version www.pdffactory.com

1 of the legal issues involved." Id. (internal quotation marks omitted). 2 In the present case, the court does not find the required exceptional circumstances.

3 Even if it is assumed that plaintiff is not well versed in the law and that he has made serious 4 allegations which, if proved, would entitle him to relief, his case is not exceptional. This court is 5 faced with cases of this general type frequently. At this early stage in the proceedings, the court 6 cannot make a determination that plaintiff is likely to succeed on the merits and after reviewing 7 the record in this case, the court does not find that plaintiff is unable to articulate his claims 8 adequately. Id. 9 For the foregoing reasons, plaintiff's motion for the appointment of counsel is

10 HEREBY DENIED, without prejudice. 11 12 13 Dated: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2PDF created with pdfFactory trial version www.pdffactory.com January 22, 2009 /s/ Susan P. Graber UNITED STATES CIRCUIT JUDGE IT IS SO ORDERED.