Harris v. German et al
Filing
108
ORDER DENYING 106 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 11/19/2020. (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DEVONTE HARRIS,
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Plaintiff,
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vs.
HUMBERTO GERMAN, et al.,
1:15-cv-01462-DAD-GSA-PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 106.)
Defendants.
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On October 29, 2020, 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 (1989).
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circumstances the Court may request the voluntary assistance of counsel pursuant to section
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1915(e)(1). Rand, 113 F.3d at 1525.
However, in certain exceptional
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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, Plaintiff seeks counsel to assist him with trial preparations. He argues
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that he will need help selecting a jury, defending against qualified immunity, admitting
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documents into evidence, and issuing trial subpoenas. This does not make Plaintiff’s case
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exceptional. At this stage of the proceedings, the court cannot find that Plaintiff is likely to
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succeed on the merits. While the court has found that “Plaintiff states cognizable claims against
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defendants Holguin, German, and Bunitzki for use of excessive force in violation of the Eighth
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Amendment, and against defendant Holguin for retaliation in violation of the First Amendment,”
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these findings are not a determination that Plaintiff is likely to succeed on the merits. (ECF No.
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21 at 14:21-24.) The legal issues in this case --whether defendants used excessive force against
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plaintiff and retaliated against him -- are not complex. Moreover, based on a review of the record
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in this case, the court finds that plaintiff can adequately articulate his claims. Thus, the court
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does not find the required exceptional circumstances, and Plaintiff’s motion shall be denied
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without prejudice to renewal of the motion at a later stage of the proceedings.
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Accordingly, 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:
November 19, 2020
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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