United States District Court, E.D. California
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL,
DENYING MOTION TO ALLOW OTHER INDIVIDUALS TO SIGN MOTIONS ON
PLAINTIFF'S BEHALF, AND DENYING WITHOUT PREJUDICE MOTION
FOR ISSUANCE OF SUBPOENAS (ECF NOS. 16, 23, 24, 25)
Kyle Petersen, is proceeding pro se and in forma
pauperis in this civil rights action brought pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971). Before the Court is Plaintiff's motion
to appoint counsel (ECF No. 23), motion informing the Court
of Plaintiff's intent to allow other individuals to sign
motions on Plaintiff's behalf (ECF No. 24), and
Plaintiff's motions requesting issuance of subpoenas (ECF
Nos. 16, 25).
Motion to Appoint Counsel
requests that the Court appoint counsel to represent him in
this action, stating that “he is mostly lost when it
comes to filing court documents.” (ECF No. 23.)
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 (1989). However, in
certain exceptional circumstances the court may request the
voluntary assistance of counsel pursuant to §
1915(e)(1). Rand, 113 F.3d at 1525.
a reasonable method of securing and compensating counsel, the
court will seek volunteer counsel only in the most serious
and exceptional cases. In determining whether
“exceptional circumstances exist, the district court
must evaluate both the likelihood of success of the merits
[and] the ability of the [plaintiff] to articulate his claims
pro se in light of the complexity of the legal
issues involved.” Id. (internal quotation
marks and citations omitted).
present case, the court does not find the required
exceptional circumstances. Even if it is assumed that
Plaintiff is not well versed in the law and that he has made
serious allegations which, if proved, would entitle him to
relief, his case is not exceptional. This court is faced with
similar cases almost daily. Further, at this early stage in
the proceedings, the court cannot make a determination that
Plaintiff is likely to succeed on the merits, and based on a
review of the record in this case, the court does not find
that Plaintiff cannot adequately articulate his claims.
foregoing reasons, Plaintiff's motion for the appointment
of counsel is denied without prejudice.
Motion Informing Court of Plaintiff's Intent to Allow
Other Individuals to Sign Motions on Plaintiff's
has filed a motion stating that he intends to give two
individuals permission to sign motions on his behalf,
“as long as they're accompanied by a declaration
stating such.” (ECF No. 24.) The Court denies this
a non-attorney may appear in propria persona in his
own behalf, that privilege is personal to him.”
C.E. Pope Equity Tr. v. United States, 818 F.2d 696,
697 (9th Cir. 1987). Thus, a non-attorney has no authority to
appear for, or sign a motion on behalf of, anyone other than
themself. See Id. Accordingly, Plaintiff may not
designate a non-attorney to sign motions on his behalf.
Plaintiff is free to seek assistance from others, such as
with legal research or other preparation of his motions, or
even with the filing of those motions, but he must himself
sign any motion that he files with the Court.
also indicates, as he has in previous motions filed in this
case, that he is in the segregated housing unit
(“SHU”) and is unable to engage in activities
necessary to litigate this action.
Court explained in its previous orders, prisoners have a
constitutionally protected right of meaningful access to the
courts, and this right encompasses the necessary means of
preparing and filing legal documents. See Bounds v.
Smith, 430 U.S. 817, 821 (1977), overruled in part
on other grounds, Lewis v. Casey, 518 U.S. 343,
354 (1996); see also, e.g., Allen v. Akai, 48 F.3d
1082, 1089 (9th Cir. 1994) (“[I]t does not require
sophisticated ‘legal scholarship' to know that a
plaintiff's access to the courts could he hindered
seriously by an inability to make multiple, accurate copies
of legal documents.”). As the Court also explained in
its previous orders, to the extent Plaintiff is claiming that
prison officials are not providing him with the necessary
means for preparing and filing documents needed to litigate
this case, Plaintiff must seek to remedy that situation
through the grievance process at his place of confinement.
There is no indication Plaintiff has yet done so.
after exhausting the grievance process, Plaintiff is still
unable to access the means necessary for litigating this
case, Plaintiff may then file a motion requesting the needed
relief, attaching as an exhibit to that motion a copy of any
decision(s) in the grievance process in which Plaintiff's
requests were denied.
Motions Requesting Subpoenas of ...