(PC) Gary v. Kincaid
1:18-cv-00612
E.D. Cal.Jan 11, 2019Background
- Plaintiff Reginald A. Gary, a civil detainee proceeding pro se and in forma pauperis, filed a § 1983 action and moved for appointment of counsel and for the Clerk to send summons for defendants.
- Gary alleges the Coalinga State Hospital law library is outdated and computer searches are restricted (by case number), hindering his ability to research and litigate.
- Gary requests court-appointed counsel under 28 U.S.C. § 1915(e)(1) and immediate issuance of summons for service on defendants.
- The Court noted there is no constitutional right to appointed counsel in civil cases and that counsel may be requested only in exceptional circumstances (Rand standard).
- The Court found no exceptional circumstances: plaintiff’s complaint has not been screened, there is no showing of likely success on the merits at this stage, and the record does not show Gary cannot articulate his claims.
- The Court also explained it will order service only after screening under 28 U.S.C. § 1915A and a finding that cognizable claims exist; therefore the motion for counsel and for issuance of summons was denied without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appointment of counsel under 28 U.S.C. § 1915(e)(1) | Gary: law library limitations and inability to access case law justify appointed counsel | Defendants: no specific contention in record; court applied governing standards | Denied — no exceptional circumstances shown; not likely to succeed on merits at screening stage; plaintiff can articulate claims |
| Issuance of summons/service before screening | Gary: asks Clerk to send summons so he can serve defendants now | Defendants: not argued; court follows mandatory screening rule | Denied — court will issue service documents only after complaint is screened and found to state cognizable claims |
Key Cases Cited
- Rand v. Rowland, 113 F.3d 1520 (9th Cir. 1997) (no constitutional right to appointed counsel in § 1983 actions; appointment appropriate only in exceptional circumstances considering likelihood of success and ability to articulate claims)
- Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989) (district courts cannot be required to appoint counsel under § 1915(e)(1))
- Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (noting partial reversal on other grounds)