(PC) Hollis v. Bal

• Court: District Court, E.D. California
• Decided: August 1, 2023
• Docket: 2:13-cv-02145
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN GLENN HOLLIS, No. 2:13-cv-02145-MCE-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 J. BAL, et al., 15 Defendants. 16 17 Plaintiff requests that the court appoint counsel or a guardian ad litem. ECF No. 185. He 18 argues that either counsel or a guardian ad litem is required because he has suffered adverse 19 consequences from his mental health issues and his medication has made it difficult for him to 20 litigate. 21 Pursuant to Rule 17(c)(2) of the Federal Rule of Civil Procedure, courts are required to 22 “appoint a guardian ad litem—or issue another appropriate order—to protect . . . [an] incompetent 23 person who is unrepresented in an action.” Without counsel, however, a plaintiff may not 24 proceed through a guardian ad litem. See Johns v. Cnty. of San Diego, 114 F.3d 874, 877 (9th 25 Cir. 1997) (“It goes without saying that it is not in the interest of minors or incompetents that they 26 be represented by non-attorneys.”). 27 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 28 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an 1 | attorney to represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of lowa, 490 U.S. 296, 2 | 298 (1989). The court can request the voluntary assistance of counsel. See 28 U.S.C. 3 | § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 4 | counsel”); Rand, 113 F.3d at 1525. But without a means to compensate counsel, the court will 5 | seek volunteer counsel only in exceptional circumstances. In determining whether such 6 | circumstances exist, “the district court must evaluate both the likelihood of success on the merits 7 | [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 8 | legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 9 After considering factors for the appointment of counsel, the court finds that there are no 10 | exceptional circumstances in this case. Plaintiff has competently litigated this action since he 11 } filed it in 2013. Further, the allegations in the complaint are not exceptionally complicated, and 12 | plaintiff has not demonstrated that he is likely to succeed on the merits. Since I am not 13 | appointing counsel, I also cannot appoint a guardian ad litem. 14 Accordingly, it is hereby ORDERED that plaintiff's motion for the appointment of 15 | counsel or guardian ad litem, ECF No. 185, is denied without prejudice. 16 7 IT IS SO ORDERED. 18 ( q oy — Dated: _ July 31, 2023 q——— 19 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE

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