Garcia v. Juarez

Filing 25

ORDER Denying 23 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 07/11/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO M. GARCIA, JR.,

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Plaintiff,
v.
MATTHEW M. JUAREZ, JR.,

1:12-cv-750AWI GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 23)

Defendant.

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On June 23, 2014, plaintiff filed a motion seeking the appointment of counsel. Plaintiff
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, 109 S.Ct. 1814, 1816 (1989). However, in certain
exceptional circumstances the court may request the voluntary assistance of counsel pursuant to
section 1915(e)(1). Rand, 113 F.3d at 1525.
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, the court does not find the required exceptional circumstances. At this

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stage in the proceedings, the court cannot make a determination that plaintiff is likely to succeed

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on the merits. Defendant has not been served with process or appeared in the case. Based on the

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record in this case, the court does not find that plaintiff cannot adequately articulate his claims.

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Further, the legal issue in this case B whether the defendant used excessive force against plaintiff -

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- is not complex, and this court is faced with similar cases almost daily. Therefore, 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.

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IT IS SO ORDERED.
Dated:

July 11, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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