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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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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.

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On April 5, 2017, 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 (1989). However, in certain exceptional circumstances the

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Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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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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Plaintiff asserts that she is indigent, unable to afford counsel, has limited knowledge of

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the law, and has limited access to the library due to disability and numerous lockdowns.

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Plaintiff also asserts that her case is complex and involves medical issues that may require

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expert testimony.

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The Court cannot make a determination in this case that Plaintiff is likely to succeed on

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the merits, because there is no complaint on file upon which the case proceeds. On March 28,

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2017, the Court granted defendant Rebel’s motion to dismiss the Fourth Amended Complaint,

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with leave to file a Fifth Amended Complaint within thirty days. (ECF No. 184.) Plaintiff has

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not filed the Fifth Amended Complaint. Therefore, there is no complaint on file upon which

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this case can proceed.

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Based on the record for this case, Plaintiff is able to adequately articulate her claims and

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respond to court orders. Id. Moreover, the legal issue in this case B whether defendants

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deliberately disregarded a substantial risk of serious harm to Plaintiff’s health -- is not complex.

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Therefore, Plaintiff’s motion shall be denied, without prejudice to renewal of the motion at a

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later stage of the proceedings.

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Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of
counsel is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

April 13, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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