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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LOUIS BRANCH, 10 11 12 13 Plaintiff, v. 1:08-cv-01655 AWI GSA (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (Document# 133) N. GRANNIS, Defendant. 14 15 On July 7, 2014, plaintiff filed a motion seeking the appointment of counsel. Plaintiff 16 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 17 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff 18 pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern 19 District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 20 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 21 section 1915(e)(1). Rand, 113 F.3d at 1525. 22 Without a reasonable method of securing and compensating counsel, the court will seek 23 volunteer counsel only in the most serious and exceptional cases. In determining whether 24 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success 25 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 26 complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted). 27 28 In the present case, Plaintiff argues that he is unable to afford counsel and his imprisonment will greatly limit his ability to litigate. 1 This does not make Plaintiff’s case 1 exceptional. This court is faced with similar cases daily. Moreover, while the court has found 2 that Plaintiff’s complaint states cognizable claims, this finding is not a determination that Plaintiff 3 is likely to succeed on the merits and at this juncture, the court cannot find that Plaintiff is likely 4 to succeed on the merits. 5 Plaintiff also argues that he has been prejudiced by Defendants’ suppression of his rights 6 to discovery. Plaintiff claims that Defendants have responded to his discovery requests with 7 boilerplate objections and invalid privilege claims, and filed a frivolous opposition to Plaintiff’s 8 motion to compel. Plaintiff’s motion to compel is now pending before the court and will be 9 resolved in due time. Therefore, at this stage of the proceedings, Plaintiff’s claim of prejudice in 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 27 28 In his motion for appointment of counsel, Plaintiff discusses his likelihood of success on claims based on prison 25 26 (1) against defendant Umphenour for 2

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