Branch v. Grannis, et al.,

Filing 134

ORDER denying 133 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 7/24/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS BRANCH,

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Plaintiff,
v.

1:08-cv-01655 AWI GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 133)

N. GRANNIS,
Defendant.

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On July 7, 2014, plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff

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pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success

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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).

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In the present case, Plaintiff argues that he is unable to afford counsel and his
imprisonment will greatly limit his ability to litigate.
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This does not make Plaintiff’s case

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exceptional. This court is faced with similar cases daily. Moreover, while the court has found

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that Plaintiff’s complaint states cognizable claims, this finding is not a determination that Plaintiff

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is likely to succeed on the merits and at this juncture, the court cannot find that Plaintiff is likely

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to succeed on the merits.

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Plaintiff also argues that he has been prejudiced by Defendants’ suppression of his rights

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to discovery. Plaintiff claims that Defendants have responded to his discovery requests with

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boilerplate objections and invalid privilege claims, and filed a frivolous opposition to Plaintiff’s

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motion to compel. Plaintiff’s motion to compel is now pending before the court and will be

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resolved in due time. Therefore, at this stage of the proceedings, Plaintiff’s claim of prejudice in

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the discovery process is premature.
Plaintiff’s case proceeds on only two claims:

retaliation under the First Amendment, and (2) against defendants Umphenour, Szalai, and
Alvarez for failure to protect Plaintiff under the Eighth Amendment.

policy and due process violations. This action is not proceeding on those claims, and therefore
Plaintiff’s arguments about success on those claims are not relevant. While Plaintiff’s retaliation
and failure to protect claims may be challenging, the court finds, based on a review of the record
and Plaintiff’s present motion, that Plaintiff appears well-informed and able to adequately
articulate his claims. Thus, the court does not find the required exceptional circumstances, and
Plaintiff’s motion shall be denied without prejudice to renewal of the motion at a later stage of the
proceedings.
For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.
Dated:

July 24, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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In his motion for

appointment of counsel, Plaintiff discusses his likelihood of success on claims based on prison

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(1) against defendant Umphenour for

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