Perez v. Padilla

Filing 43

ORDER DENYING Plaintiff's Oral Motion for Appointment of Pro Bono Counsel, signed by Magistrate Judge Erica P. Grosjean on 02/06/2017. (Martin-Gill, S)

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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-01730-DAD-EPG (PC)

JOSEPH PEREZ,

v.

ORDER DENYING PLAINTIFF’S ORAL
MOTION FOR APPOINTMENT OF PRO
BONO COUNSEL

R. PADILLA,
Defendant.

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Joseph Perez (“Plaintiff”) is a former state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On January 31, 2017, the

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Court held a hearing on Defendant’s motion to dismiss. (ECF No. 42). At the hearing Plaintiff

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made what the Court construed as an oral motion for the appointment of pro bono counsel.

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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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952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.
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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The Court will not order appointment of pro bono counsel at this time. At the hearing on the

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motion to dismiss, Plaintiff stated that he was illiterate. Additionally, based on the record in this case,

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it does appear that Plaintiff is having trouble responding appropriately to court orders. However, at

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this early stage in the proceedings the Court cannot make a determination that Plaintiff is likely to

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succeed on the merits. While at the screening stage Plaintiff’s complaint was found to state a claim

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(ECF No. 25), there is currently a pending motion to dismiss (ECF No. 30). Accordingly, the Court

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will deny the oral motion for appointment of pro bono counsel.

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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, nothing in this order prevents Plaintiff

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from hiring his own counsel.

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Accordingly, based on the foregoing, Plaintiff’s oral motion for appointment of pro bono
counsel is DENIED without prejudice.

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IT IS SO ORDERED.
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Dated:

February 6, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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