Garcia v. Juarez
Filing
47
ORDER DENYING 46 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 08/20/2015. (Martin-Gill, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
ROBERTO M. GARCIA, JR.,
12
13
14
15
Plaintiff,
v.
MATTHEW M. JUAREZ, JR.,
1:12-cv-00750-AWI-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 46)
Defendant.
16
17
18
19
20
21
22
23
24
On August 17, 2015, 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
25
volunteer counsel only in the most serious and exceptional cases.
26
Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of
27
the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
28
complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).
1
In determining whether
1
In the present case, plaintiff argues that he has no legal experience, he is unable to afford counsel,
2
and he has been unable to obtain confidential reports of the defendant’s misconduct. This does
3
not make plaintiff’s case exceptional. This court is faced with similar cases daily. While the
4
court has found that “Plaintiff states a cognizable claim for use of excessive force in violation of
5
the Eighth Amendment against defendant Sergeant Matthew M. Juarez, Jr., for assaulting Plaintiff
6
7
8
9
when he was prone on the ground posing no threat to anyone,” this finding is not a determination
that plaintiff is likely to succeed on the merits and at this juncture, the court cannot find that
plaintiff is likely to succeed on the merits. (ECF No. 16 at 5:12-14.) Plaintiff’s excessive force
claim against one officer is not complex, and based on a review of the record in this case, the
court does not find that plaintiff cannot adequately articulate his claims. Thus, the court does not
10
find the required exceptional circumstances, and plaintiff’s motion shall be denied without
11
12
13
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.
14
15
16
17
IT IS SO ORDERED.
Dated:
August 20, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
18
19
20
21
22
23
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?