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Garrison S. Johnson v. Matthew Cate

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 19, 2012

GARRISON S. JOHNSON,
PLAINTIFF,
v.
MATTHEW CATE, ET AL,
DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF No. 38) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF No. 37)

On October 17, 2012, Plaintiff filed an application to proceed in forma pauperis. Plaintiff's application is denied. Plaintiff is subject to the three strikes provision of 28 U.S.C. § 1915(g). Plaintiff was required to pay the filing fee in full before proceeding in this action.

On October 17, 2012, plaintiff filed a motion seeking the appointment of counsel. Plaintiff is not proceeding in forma pauperis in this action. Plaintiff has paid the filing fee. Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

Again, Plaintiff is not proceeding in forma pauperis in this action and is thus not eligible for appointment of counsel under § 1915(e)(1). Even if Plaintiff was eligible, Plaintiff has not demonstrated that exceptional circumstances exist which merit appointment of counsel. Plaintiff has demonstrated an adequate ability to present his claims in this action, and has not demonstrated the likelihood of success on the merits in this action.

For the foregoing reasons, plaintiff's motion for the appointment of counsel and to proceed in forma pauperis are HEREBY DENIED.

IT IS SO ORDERED.

20121219

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