Montanez v. Gonzalez et al

Filing 65

ORDER DENYING 64 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 3/14/2013. (Sant Agata, S)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL MONTANEZ, 12 13 Plaintiff, 1:10-cv-01931-AWI-BAM (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL vs. (ECF No. 64) 14 F. A. GONZALEZ, et al., 15 Defendants. ________________________________/ 16 On March 8, 2013, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff 17 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 18 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent Plaintiff 19 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 20 District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 21 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 22 section 1915(e)(1). Rand, 113 F.3d at 1525. 23 Without a reasonable method of securing and compensating counsel, the court will seek 24 volunteer counsel only in the most serious and exceptional cases. In determining whether 25 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 26 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 27 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 28 -1- 1 In the present case, the court does not find the required exceptional circumstances. Even 2 if it is assumed that Plaintiff is not well versed in the law and that he has made serious 3 allegations which, if proved, would entitle him to relief, his case is not exceptional. This court is 4 faced with similar cases almost daily. Further, at this early stage in the proceedings, the court 5 cannot make a determination that Plaintiff is likely to succeed on the merits. Based on a review 6 of the record in this case, the court does not find that Plaintiff cannot adequately articulate his 7 claims. Id. Although Plaintiff explains that his pain medication makes it difficult for him and 8 that he is unable to use his right hand for writing, Plaintiff has been able to prosecute this action 9 adequately thus far and he may request extensions of time, where appropriate and necessary, to 10 11 complete any pleadings or to respond to discovery. For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY 12 DENIED without prejudice. 13 IT IS SO ORDERED. 14 Dated: 10c20k March 14, 2013 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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