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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAMIEN T. DOSTER, 12 13 14 15 Plaintiff, v. P. LLAMAS, et al., 1:15-cv-01415-DAD-GSA (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (Document# 30) Defendant. 16 17 On October 11, 2016, plaintiff filed a motion seeking the appointment of counsel. 18 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 19 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent 20 plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the 21 Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 22 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 23 section 1915(e)(1). Rand, 113 F.3d at 1525. 24 Without a reasonable method of securing and compensating counsel, the court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of 27 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted). 1 1 In the present case, the court does not find the required exceptional circumstances. 2 Plaintiff argues that he is unskilled in the law, cannot afford to retain an attorney, has a 3 meritorious case, and has been denied relevant evidence by Defendants. This does not make 4 Plaintiff’s case exceptional under the law. At this stage in the proceedings, the court cannot make 5 a determination that plaintiff is likely to succeed on the merits. Defendants= motion for summary 6 judgment for failure to exhaust administrative remedies is now pending and may dispose of most 7 of Plaintiff’s claims. Moreover, based on the record in this case, the court does not find that 8 plaintiff cannot adequately articulate his claims. Further, the legal issues in this case, concerning 9 conditions of confinement, are not complex. Therefore, plaintiff=s motion shall be denied without 10 11 12 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. 13 14 15 IT IS SO ORDERED. Dated: October 13, 2016 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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