Leiva v. Jackson

Filing 13

ORDER DENYING Plaintiff's 12 Motion for Appointment of Pro Bono Counsel signed by Magistrate Judge Erica P. Grosjean on 6/12/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:16-cv-00167-AWI-EPG (PC)

ANDRE LEIVA,
Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF PRO BONO
COUNSEL
(ECF NO. 12)

W. JACKSON,

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Defendant.

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Andre Leiva (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with

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this civil rights action filed pursuant to 42 U.S.C. § 1983. On June 5, 2017, Plaintiff filed a

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motion for appointment of pro bono counsel. (ECF No. 12).

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Plaintiff asks for appointment of counsel because he does not fully comprehend the law
and because the issues in this case are complex to Plaintiff.

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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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952

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(9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28

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U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

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490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances
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the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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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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The Court will not order appointment of pro bono counsel at this time. The Court screened

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Plaintiff’s complaint and found that it failed to state a claim. (ECF No. 10). The Court gave Plaintiff

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thirty days to file a First Amended Complaint or to notify the Court that he wanted to stand on his

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complaint, subject to the Court issuing findings and recommendations consistent with the screening

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order to the assigned district judge. (Id.). Plaintiff failed to timely respond to the Court’s screening

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order.1 Accordingly, as this case currently stands, it appears that Plaintiff is not likely to succeed on

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the merits of his claim.

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Plaintiff is advised that he is not precluded from renewing the motion for appointment of pro
bono counsel at a later stage of the proceedings.
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for appointment of pro
bono counsel is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

June 12, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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The Court notes that Plaintiff states that he filed an amended complaint on or
around April 25, 2017 (ECF No. 12), which would have been a timely response. However, the
Court did not receive Plaintiff’s amended complaint.
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