Hollis v. Bal et al

Filing 188

ORDER signed by Magistrate Judge Jeremy D. Peterson on 7/31/2023 DENYING without prejudice 185 Motion to Appoint Counsel or Guardian Ad Litem. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARVIN GLENN HOLLIS,

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Plaintiff,

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No. 2:13-cv-02145-MCE-JDP (PC)

v.

ORDER

J. BAL, et al.,

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Defendants.

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Plaintiff requests that the court appoint counsel or a guardian ad litem. ECF No. 185. He

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argues that either counsel or a guardian ad litem is required because he has suffered adverse

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consequences from his mental health issues and his medication has made it difficult for him to

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litigate.

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Pursuant to Rule 17(c)(2) of the Federal Rule of Civil Procedure, courts are required to

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“appoint a guardian ad litem—or issue another appropriate order—to protect . . . [an] incompetent

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person who is unrepresented in an action.” Without counsel, however, a plaintiff may not

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proceed through a guardian ad litem. See Johns v. Cnty. of San Diego, 114 F.3d 874, 877 (9th

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Cir. 1997) (“It goes without saying that it is not in the interest of minors or incompetents that they

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be represented by non-attorneys.”).

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Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand
v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an
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attorney to represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296,

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298 (1989). The court can request the voluntary assistance of counsel. See 28 U.S.C.

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§ 1915(e)(1) (“The court may request an attorney to represent any person unable to afford

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counsel”); Rand, 113 F.3d at 1525. But without a means to compensate counsel, the court will

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seek volunteer counsel only in exceptional circumstances. In determining whether such

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circumstances exist, “the district court must evaluate both the likelihood of success on the merits

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

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legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).

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After considering factors for the appointment of counsel, the court finds that there are no

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exceptional circumstances in this case. Plaintiff has competently litigated this action since he

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filed it in 2013. Further, the allegations in the complaint are not exceptionally complicated, and

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plaintiff has not demonstrated that he is likely to succeed on the merits. Since I am not

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appointing counsel, I also cannot appoint a guardian ad litem.
Accordingly, it is hereby ORDERED that plaintiff’s motion for the appointment of

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counsel or guardian ad litem, ECF No. 185, is denied without prejudice.

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IT IS SO ORDERED.

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Dated:
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July 31, 2023
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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