Tran v. Junious et al

Filing 20

ORDER Denying 17 Motion for Appointment of Counsel, signed by Magistrate Judge Erica P. Grosjean on 5/6/16. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:14-cv-01320-EPG-PC

BINH TRAN,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 17.)

vs.
M. JUNIOUS, et al.,
Defendants.

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On April 7, 2016, 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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In the present case, the Court does not find the required exceptional circumstances. At

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this stage of the proceedings, the Court cannot make a determination that Plaintiff is likely to

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succeed on the merits. While the Court has screened Plaintiff’s Second Amended Complaint

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and “finds that it states claims against Defendant Smith for violation of the Eighth Amendment

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and negligence,” this finding is not a determination that Plaintiff is likely to succeed on the

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merits. (ECF No. 16 at 6:27-28.) Moreover, to date Defendant Smith has not been served or

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appeared in this action. Plaintiff’s claims do not appear complex, and based on a review of the

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record in this case, it appears that Plaintiff can adequately articulate his claims. Thus, the Court

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does not find the required exceptional circumstances, and Plaintiff’s motion shall be denied

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without prejudice to renewal of the motion at a later stage of the proceedings.
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:

May 6, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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