Gonzalez v. Razo et al

Filing 108

ORDER DENYING Plaintiff's 107 Motion for Appointment of Pro Bono Counsel; ORDER DIRECTING Clerk to send a copy of this order to Manuel Gonzalez, signed by Magistrate Judge Erica P. Grosjean on 12/11/17. (This order sent to Manuel Gonzalez T-42888 RJ Donovan) (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 MANUEL ANTONIO GONZALEZ, Plaintiff, 13 14 v. 15 J. RAZO, et al., 16 Case No. 1:15-cv-01098-DAD-EPG (PC) ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF PRO BONO COUNSEL (ECF NO. 107) Defendants. 17 ORDER DIRECTING CLERK TO SEND A COPY OF THIS ORDER TO MANUEL GONZALEZ 18 19 Manuel Gonzalez (“Plaintiff”) is a state prisoner, and is the plaintiff in this civil rights 20 action filed pursuant to 42 U.S.C. § 1983, which includes attendant state law claims. Plaintiff is 21 represented by attorney Stanley Goff. 22 appointment of pro bono counsel. (ECF No. 107). On December 7, 2017, Plaintiff filed a motion for 23 Plaintiff asks for appointment of counsel to assist his current counsel as co-counsel, due to 24 institution staff interfering with Plaintiff’s ability to communicate with his current counsel. “The 25 co-counsel attorney would also ensure Plaintiff’s arguments are adequately being presented to the 26 Court without U.S. Const. rights being violated.” Additionally, Plaintiff asks for co-counsel 27 because he suffers from a serious brain injury, which left him intellectually challenged. 28 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 1 1 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 2 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 3 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 4 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances 5 the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 6 113 F.3d at 1525. 7 Without a reasonable method of securing and compensating counsel, the Court will seek 8 volunteer counsel only in the most serious and exceptional cases. 9 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 10 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 11 complexity of the legal issues involved.” Id. (internal quotation marks and citation omitted). 12 In determining whether Plaintiff already has counsel. Accordingly, the Court will not appoint counsel for Plaintiff 13 at this time. Moreover, even if Plaintiff did not have counsel, the Court would not order 14 appointment of pro bono counsel at this time. The Court has reviewed the record in this case, and at 15 this time the Court cannot make a determination that Plaintiff is likely to succeed on the merits of his 16 claims. Moreover, based on the record in this case, it appears that Plaintiff can adequately articulate 17 his claims and respond to Court orders. 18 While the Court notes Plaintiff’s concerns with his inability to communicate with his 19 current counsel, it does not appear that staff at Plaintiff’s institution of confinement is interfering 20 with Plaintiff’s communications with his counsel. 21 Plaintiff’s own counsel who decided not attend the scheduled confidential phone conference with 22 Plaintiff. (ECF No. 106, p. 2). Notably, Mr. Goff has not tried to reschedule that call. It does not 23 appear that institution staff did anything to interfere with the conference. Thus, the lack of 24 communication with Plaintiff appears to be the fault of Plaintiff’s current counsel—not Plaintiff’s 25 institution. As the Court also previously noted, “[t]his is not the first time Plaintiff has been 26 unable to communicate with Mr. Goff in this case, and this lack of communication between Mr. 27 Goff and a client does not appear to be new.” (Id. at 3). 28 As the Court noted previously, it was Thus, the Court shares Plaintiff’s concerns about his current counsel, Mr. Goff. 2 If 1 Plaintiff has an issue with how his counsel is communicating with him, he should address that 2 issue with his counsel. If Plaintiff believes that his counsel’s representation is inadequate, he may 3 take the appropriate action including ending his representation and proceeding pro se, substituting 4 counsel, or even taking action against Mr. Goff. But the Court will not appoint another counsel to 5 assist Plaintiff’s current counsel. So long as Plaintiff continues to retain Mr. Goff, Mr. Goff 6 represents Plaintiff in this case. 7 8 9 10 11 12 Plaintiff is advised that he is not precluded from renewing his motion for appointment of pro bono counsel at a later stage of the proceedings if it becomes necessary. For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for appointment of pro bono counsel is DENIED without prejudice. It is FURTHER ORDERED that the Clerk of Court is directed to send a copy of this order to Mr. Gonzalez. 13 14 15 IT IS SO ORDERED. Dated: December 11, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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