Guillermo Trujillo Cruz v. Gomez et al

Filing 8

ORDER DENYING Plaintiff's 7 Motion for Appointment of Counsel and Issuance of Subpoena, signed by Magistrate Judge Gary S. Austin on 7/22/2015. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO TRUJILLO CRUZ,

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Plaintiff,

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vs.

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GOMEZ, et al.,

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1:15-cv-00859-GSA-PC
ORDER DENYING PLAINTIFF=S
MOTION FOR APPOINTMENT OF
COUNSEL AND ISSUANCE OF
SUBPOENA
(ECF No. 7.)

Defendants.

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I.

BACKGROUND

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Guillermo Trujillo Cruz (APlaintiff@) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. On June 8, 2015, Plaintiff

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filed the Complaint commencing this action. (ECF No. 1.)

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On July 20, 2015, Plaintiff filed a request for issuance of a subpoena and appointment

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of counsel. (ECF No. 7.)

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II.

MOTION FOR APPOINTMENT OF COUNSEL

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Plaintiff requests court-appointed counsel to conduct an investigation and, if

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appropriate, to file a motion for DNA testing. Plaintiff does not have a constitutional right to

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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and
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the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1).

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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298,

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109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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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

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of 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. At

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this early stage in the proceedings, the court cannot make a determination that plaintiff is likely

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to succeed on the merits. Plaintiff filed the Complaint on June 8, 2015, and the Complaint

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awaits the Court=s screening required under 28 U.S.C. 1915. Thus, to date the Court has not

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found any cognizable claims in Plaintiff=s Complaint for which to initiate service of process,

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

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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

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the proceedings.

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III.

MOTION FOR ISSUANCE OF SUBPOENA

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Plaintiff requests the court to issue a subpoena compelling the Kern County Superior

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Court to produce evidence. Plaintiff’s request shall be denied because it is not yet time for

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discovery in this case. The court will issue a scheduling order opening discovery after the

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complaint has been served and a defendant has filed an Answer to the complaint. At this stage

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of the proceedings, Plaintiff’s Complaint awaits the court’s requisite screening process.

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Service of process shall not be initiated until the court has screened the complaint and finds that

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Plaintiff states cognizable claims. Therefore, it is not time for discovery in this action, and

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Plaintiff’s request for the issuance of a subpoena is premature.
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IV.

CONCLUSION

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Based on the foregoing IT IS HEREBY ORDERED that:

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1.

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Plaintiff=s motion for appointment of counsel is DENIED, without prejudice;
and

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Plaintiff=s request for issuance of a subpoena is DENIED as premature.

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IT IS SO ORDERED.
Dated:

July 22, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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