(PC)Kelly v. Warden of Kern Valley State Prison

E.D. California

(PC)Kelly v. Warden of Kern Valley State Prison

DecidedSeptember 30, 2024

Docket1:24-cv-01148

StatusUnknown

This text of (PC)Kelly v. Warden of Kern Valley State Prison ((PC)Kelly v. Warden of Kern Valley State Prison) is published on Counsel Stack Legal Research, covering District Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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(PC)Kelly v. Warden of Kern Valley State Prison, (E.D. Cal. 2024).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CARL KELLY, 1:24-cv-01148-GSA (PC)

12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL

14 WARDEN OF KERN VALLEY STATE (Document# 3) PRISON, et al., 15 Defendant. 16

17 On September 26, 2024, plaintiff filed a motion seeking the appointment of 18 counsel. Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 19 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 20 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for 21 the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 22 certain exceptional circumstances the court may request the voluntary assistance of counsel 23 pursuant to section § 1915(e)(1). Rand, 113 F.3d at 1525. 24 Without a reasonable method of securing and compensating counsel, the court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of 27 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 1 complexity of the legal issues involved. 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. Further, at 5 this early stage in the proceedings, the court cannot make a determination that plaintiff is likely to 6 succeed on the merits, and based on a review of the record in this case, the court does not find 7 that plaintiff cannot adequately articulate his claims. 8 For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY 9 DENIED, without prejudice. 10 IT IS SO ORDERED. 11 Dated: September 28, 2024 /s/ Gary S. Austin 12 UNITED STATES MAGISTRATE JUDGE 13

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CARL KELLY, 1:24-cv-01148-GSA (PC)

12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL

14 WARDEN OF KERN VALLEY STATE (Document# 3) PRISON, et al., 15 Defendant. 16

17 On September 26, 2024, plaintiff filed a motion seeking the appointment of 18 counsel. Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 19 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 20 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for 21 the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 22 certain exceptional circumstances the court may request the voluntary assistance of counsel 23 pursuant to section § 1915(e)(1). Rand, 113 F.3d at 1525. 24 Without a reasonable method of securing and compensating counsel, the court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of 27 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 1 complexity of the legal issues involved. 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. Further, at 5 this early stage in the proceedings, the court cannot make a determination that plaintiff is likely to 6 succeed on the merits, and based on a review of the record in this case, the court does not find 7 that plaintiff cannot adequately articulate his claims. 8 For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY 9 DENIED, without prejudice. 10 IT IS SO ORDERED. 11 Dated: September 28, 2024 /s/ Gary S. Austin 12 UNITED STATES MAGISTRATE JUDGE 13

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