Gutierrez v. Tate, et al.

Filing 6

ORDER DENYING Motion for Appointment of Counsel 3 , signed by Magistrate Judge Gary S. Austin on 1/5/15: Motion is DENIED without prejudice. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAY GUTIERREZ,

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Plaintiff,
v.
HAROLD F. TATE, et al.,

1:14-cv-02077 GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 3)

Defendants.

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On December 29, 2014, Plaintiff filed a motion seeking the appointment of counsel.

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

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113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent

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plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the

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Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek
volunteer counsel only in the most serious and exceptional cases.

In determining whether

Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of
the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
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 this

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early stage in the proceedings, the court cannot make a determination that Plaintiff is likely to

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succeed on the merits. Plaintiff filed the Complaint on December 29, 2014, merely a week ago,

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and the Complaint awaits the court=s screening required under 28 U.S.C. 1915. Thus, to date the

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court has not found any cognizable claims in Plaintiff=s Complaint for which to initiate service of

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process, and no other parties have yet appeared. Moreover, based on a review of the record in

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this case, the court does not find that Plaintiff cannot adequately articulate his claims. Therefore,

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Plaintiff=s motion shall be denied without prejudice to renewal of the motion at a later stage of the
proceedings.
For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.
Dated:

January 5, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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