Leiva v. Jackson

Filing 26

ORDER DENYING 25 Plaintiff's Motion for Appointment of Pro Bono Counsel signed by Magistrate Judge Erica P. Grosjean on 10/30/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:16-cv-00167-AWI-EPG (PC)

ANDRE LEIVA,
Plaintiff,

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v.

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W. JACKSON,

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ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF PRO BONO
COUNSEL
(ECF NO. 25)

Defendant.

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

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this civil rights action filed pursuant to 42 U.S.C. § 1983. On October 25, 2017, Plaintiff filed a

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motion for appointment of pro bono counsel. (ECF No. 25).

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Plaintiff asks for appointment of counsel because his case has “has now reached level’s
[sic] far behind [his] knowledge[,]” and because Defendant has counsel.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952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

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reviewed the record in this case, and at this time the Court cannot make a determination that Plaintiff

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is likely to succeed on the merits of his claims. Moreover, while there have been some issues, based

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on the complaints Plaintiff has filed it appears that Plaintiff can adequately articulate his claim.

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Plaintiff is advised that he is not precluded from renewing his 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:

October 30, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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