Doster v. Beard et al

Filing 32

ORDER DENYING 30 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 10/13/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAMIEN T. DOSTER,

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Plaintiff,
v.
P. LLAMAS, et al.,

1:15-cv-01415-DAD-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 30)

Defendant.

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On October 11, 2016, 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

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volunteer counsel only in the most serious and exceptional cases.

In determining whether

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Aexceptional 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 is unskilled in the law, cannot afford to retain an attorney, has a

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meritorious case, and has been denied relevant evidence by Defendants. This does not make

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Plaintiff’s case exceptional under the law. At this stage in the proceedings, the court cannot make

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a determination that plaintiff is likely to succeed on the merits. Defendants= motion for summary

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judgment for failure to exhaust administrative remedies is now pending and may dispose of most

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of Plaintiff’s claims. Moreover, based on the record in this case, the court does not find that

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plaintiff cannot adequately articulate his claims. Further, the legal issues in this case, concerning

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conditions of confinement, are not complex. Therefore, plaintiff=s motion shall be denied without

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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.

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IT IS SO ORDERED.
Dated:

October 13, 2016

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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