Goolsby v. Cate et al

Filing 7

ORDER Denying 6 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 2/14/13. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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THOMAS GOOLSBY, et al.,

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1:13-cv-00119-GSA (PC)

Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

vs.

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MATTHEW CATE, et al.,

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Defendants.

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________________________________/

(MOTION #6)

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On February 11, 2013, Plaintiffs filed a motion seeking the appointment of counsel.

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Plaintiffs do not have a constitutional right to appointed counsel in this action, Rand v. Rowland,

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113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent Plaintiffs

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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 exceptional

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circumstances the court may request the voluntary assistance of counsel pursuant to section

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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 of

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity

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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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early stage in the proceedings, the Court cannot make a determination that Plaintiffs are likely to

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succeed on the merits. Plaintiffs filed the Complaint on January 25, 2013, less than a month ago,

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and the Complaint awaits the Court’s screening required under 28 U.S.C. 1915A. Thus, to date

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the Court has not found any cognizable claims in Plaintiffs’ Complaint for which to initiate service

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of process, and no other parties have yet appeared. Moreover, based on a review of the record in

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this case, the Court does not find that Plaintiffs cannot adequately articulate their claims.

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Therefore, Plaintiffs’ motion shall be denied without prejudice to renewal of the motion at a later

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stage of the proceedings.

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

February 14, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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