Gutierrez v. Gutierrez

Filing 56

ORDER denying 54 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 7/14/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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G.J. GUTIERREZ,

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Plaintiff,

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v.

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A. GUTIERREZ,

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1:13-cv-00421 LJO-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 54)

Defendant.

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On July 6, 2015, Plaintiff filed a motion seeking the appointment of counsel to represent

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him at his upcoming deposition. Plaintiff does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court

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cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v.

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United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814,

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1816 (1989). However, in certain exceptional circumstances the court may request the voluntary

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assistance of counsel pursuant to 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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Aexceptional 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

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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, Plaintiff argues that he is a layperson, unskilled at law, and requires

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assistance to participate in his deposition. Plaintiff asserts that he sought the assistance of other

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prisoners when filing his complaint and other documents, but he will not be allowed to have

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fellow prisoners assist him at his deposition. Plaintiff also asserts that he has extreme difficulty

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focusing and concentrating.

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This does not make Plaintiff’s case exceptional. This court is faced with similar cases

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daily. While the court has found that “[l]iberally construed, [Plaintiff’s] complaint states Eighth

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Amendment claims for excessive force and failure to protect against Defendant [A. Gutierrez],”

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this finding is not a determination that Plaintiff is likely to succeed on the merits and at this

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juncture, the court cannot find that Plaintiff is likely to succeed on the merits. (Doc. 6 at 2:22-

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23.) Plaintiff’s claims do not appear complex, and based on a review of the record in this case,

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the court does not find that Plaintiff cannot adequately articulate his claims. Thus, the court does

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not find the required exceptional circumstances, and Plaintiff’s motion shall be denied without
prejudice.
For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.

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Dated:

July 14, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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