Gray v. Johnson et al

Filing 202

ORDER Denying 186 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 04/13/2017. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 1:13-cv-01473-DAD-GSA-PC DANA GRAY, Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE (ECF No. 186.) vs. ROMERO, et al., Defendants. 16 17 On April 5, 2017, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff 18 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 19 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent Plaintiff 20 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 21 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the 22 Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 23 113 F.3d at 1525. 24 Without a reasonable method of securing and compensating counsel, the Court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 27 of 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 1 Plaintiff asserts that she is indigent, unable to afford counsel, has limited knowledge of 2 the law, and has limited access to the library due to disability and numerous lockdowns. 3 Plaintiff also asserts that her case is complex and involves medical issues that may require 4 expert testimony. 5 The Court cannot make a determination in this case that Plaintiff is likely to succeed on 6 the merits, because there is no complaint on file upon which the case proceeds. On March 28, 7 2017, the Court granted defendant Rebel’s motion to dismiss the Fourth Amended Complaint, 8 with leave to file a Fifth Amended Complaint within thirty days. (ECF No. 184.) Plaintiff has 9 not filed the Fifth Amended Complaint. Therefore, there is no complaint on file upon which 10 this case can proceed. 11 Based on the record for this case, Plaintiff is able to adequately articulate her claims and 12 respond to court orders. Id. Moreover, the legal issue in this case B whether defendants 13 deliberately disregarded a substantial risk of serious harm to Plaintiff’s health -- is not complex. 14 Therefore, Plaintiff’s motion shall be denied, without prejudice to renewal of the motion at a 15 later stage of the proceedings. 16 17 Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY DENIED, without prejudice. 18 19 20 21 IT IS SO ORDERED. Dated: April 13, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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