Feiger v. Smith et al

Filing 32

ORDER DENYING WITHOUT PREJUDICE 30 Motion to Appoint Counsel, signed by Magistrate Judge Erica P. Grosjean on 8/23/16. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT FEIGER,

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Plaintiff,
v.
MARLENE SMITH, et al.,

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1:14-cv-01920 DAD-EPG (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 30)

Defendants.

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On August 15, 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, 113

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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 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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In the present case, the Court does not find the required exceptional circumstances.

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Plaintiff argues that he has sought counsel and is unable to afford counsel; that the issues in this

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case are very complex; that he has limited access to the law library; and that he has limited

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knowledge of the law. These factors do not make his case exceptional. While the Court has

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found that “Plaintiff’s Complaint states cognizable claims against defendants Marlene Smith, Natalie

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Clark, and Antoneya Graves[, and] will allow Plaintiff’s claims for violation of his First Amendment

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rights to exercise his religion, for retaliation, and for related state law claims to go forward,” this

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finding is not a determination that Plaintiff is likely to succeed on the merits. (ECF No. 18 at

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7:18-21.) Plaintiff’s First Amendment and retaliation claims do not appear complex, and based

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on a review of the record in this case, it appears that Plaintiff can adequately articulate his claims.

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Thus, the Court does not find the required exceptional circumstances, and Plaintiff’s motion shall

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

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.

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Dated:

August 23, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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