Herrera v. Nguyen

Filing 11

ORDER DENYING 10 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 5/2/2013. (Sant Agata, S)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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Plaintiff,

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1:12-cv-01915 GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

vs.
H. NGUYEN,

(MOTION #10)
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Defendant.

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________________________________/

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On April 22, 2013, 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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“exceptional 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, and

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Plaintiff’s motion shall be denied. At this early stage in the proceedings, the court cannot make

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a determination that Plaintiff is likely to succeed on the merits. Plaintiff’s Complaint was

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dismissed on April 3, 2013, for failure to state a claim, with leave to amend. To date, Plaintiff

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has not filed an amended complaint. Thus, there is no complaint on record in this case for

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which the Court has found cognizable claims. It is too early for service of process, and no other

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parties have yet appeared. Moreover, the Court does not find that Plaintiff cannot adequately

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articulate his claims or respond to the Court’s orders. Plaintiff is advised that he is not

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precluded from renewing the motion for appointment of counsel at a later stage of the

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proceedings.
For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is
HEREBY DENIED, without prejudice.
IT IS SO ORDERED.
Dated:
220hhe

May 2, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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