Tran v. Junious et al

Filing 46

ORDER denying 44 Motion to Appoint Counsel signed by Magistrate Judge Erica P. Grosjean on 5/5/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:14-cv-01320-DAD-EPG (PC)

BINH TRAN,

v.

ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF PRO BONO
COUNSEL
(ECF NO. 44)

E. SMITH,
Defendant.

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Binh Tran (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with

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this civil rights action filed pursuant to 42 U.S.C. § 1983 and attendant state law claim for

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common law negligence. On May 4, 2017, Plaintiff filed a motion for appointment of pro bono

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counsel. (ECF No. 44).

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Plaintiff asks for appointment of counsel because he is unable to afford counsel, because

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he is in prison, which limits his ability to litigate, because the issues in this case are complex,

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because English is his second language, and because this case will likely involve conflicting

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testimony.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952
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(9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28

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U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

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490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances

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the 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.

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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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In determining whether

complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).

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The Court will not order appointment of pro bono counsel at this time. At this early stage in

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the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the

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merits. Moreover, based on the record in this case, the Court finds that Plaintiff can adequately

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articulate his claims and respond to court orders. Finally, it does not appear that this case is complex.

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Plaintiff is proceeding against one defendant on what appear to be straight forward claims for

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violation of Plaintiff’s Eighth Amendment rights and negligence.

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Plaintiff is advised that he is not precluded from renewing the motion for appointment of pro

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bono counsel at a later stage of the proceedings. Additionally, the Court notes that if Plaintiff needs

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any deadlines to be extended, he is free to ask the Court to extend those deadlines.

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For the foregoing reasons, Plaintiff’s motion for appointment of pro bono counsel is DENIED
without prejudice.

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IT IS SO ORDERED.
Dated:

May 5, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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