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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 Plaintiff, 13 14 15 16 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. 17 18 19 Joseph Perez (“Plaintiff”) is a former state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On January 31, 2017, the 21 Court held a hearing on Defendant’s motion to dismiss. (ECF No. 42). At the hearing Plaintiff 22 made what the Court construed as an oral motion for the appointment of pro bono counsel. 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 24 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 25 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 26 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 27 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances 28 the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 1 1 2 113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the Court will seek 3 volunteer counsel only in the most serious and exceptional cases. In determining whether 4 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of 5 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 6 complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted). 7 The Court will not order appointment of pro bono counsel at this time. At the hearing on the 8 motion to dismiss, Plaintiff stated that he was illiterate. Additionally, based on the record in this case, 9 it does appear that Plaintiff is having trouble responding appropriately to court orders. However, at 10 this early stage in the proceedings the Court cannot make a determination that Plaintiff is likely to 11 succeed on the merits. While at the screening stage Plaintiff’s complaint was found to state a claim 12 (ECF No. 25), there is currently a pending motion to dismiss (ECF No. 30). Accordingly, the Court 13 will deny the oral motion for appointment of pro bono counsel. 14 Plaintiff is advised that he is not precluded from renewing the motion for appointment of pro 15 bono counsel at a later stage of the proceedings. Additionally, nothing in this order prevents Plaintiff 16 from hiring his own counsel. 17 18 Accordingly, based on the foregoing, Plaintiff’s oral motion for appointment of pro bono counsel is DENIED without prejudice. 19 IT IS SO ORDERED. 20 21 Dated: February 6, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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