Harris v. German et al

Filing 95

ORDER DENYING 93 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 7/9/2020. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:15-cv-01462-DAD-GSA (PC)

DEVONTE B HARRIS,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document# 93)

HUMBERTO GERMAN, et al.,
Defendants.

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On June 25, 2020, plaintiff filed a motion seeking the appointment of counsel. (ECF No.

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93.) Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 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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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.

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“exceptional 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 complexity

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of the legal issues involved.” Id. (internal quotation marks and citations omitted).
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In determining whether

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In the present case, plaintiff asserts that he is incarcerated and representing himself,

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attorneys have declined to represent him despite his ability to pay, and he requires assistance to

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obtain evidence in support of his claims. While these conditions make litigation difficult for

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plaintiff, these conditions alone do not make plaintiff’s case exceptional. While it is true that the

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court has found that “[p]laintiff states cognizable claims against defendants Holguin, German, and

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Bunitzki for use of excessive force . . . and against defendant Holguin for retaliation,” this finding

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is not a determination that plaintiff is likely to succeed on the merits, and at this juncture the court

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cannot find that plaintiff is likely to succeed on the merits. (ECF No. 21 at 12:21-23.) Plaintiff’s

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claims for excessive force and retaliation do not appear complex, and based on a review of the

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record in this case, it appears 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 without

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prejudice to renewal of the motion at a later stage of the proceedings.

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For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff’s motion for the
appointment of counsel, filed on June 25, 2020, is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

July 9, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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