Manago v. Davey et al

Filing 116

ORDER DENYING Motion for Appointment of Counsel 109 , signed by Magistrate Judge Gary S. Austin on 4/24/2018: Motion is DENIED without prejudice. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEWART MANAGO,

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Plaintiff,

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vs.

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1:16-cv-00399-LJO-GSA-PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 109.)

D. DAVEY, et al.,

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Defendants.

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On February 28, 2018, 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.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to

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represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

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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.

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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, the Court does not find the required exceptional circumstances.

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Plaintiff’s case stems from allegations that the defendants retaliated against him by retaining

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him in the SHU because of his grievances and civil litigation. The court does not find that

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Plaintiff is likely to succeed on the merits of this case.

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“Plaintiff’s First Amended Complaint states a cognizable claim . . . for retaliation in violation

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of the First Amendment,” (ECF No. 16 at 8:6-8), this is not a finding that Plaintiff is likely to

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succeed on the merits. The Court finds from a review of the record that Plaintiff is able to

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adequately articulate his claims and respond to court orders, and Plaintiff’s retaliation claims

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are not complex. Therefore, Plaintiff’s motion shall be denied, without prejudice to renewal of

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While the court has found that

the motion at a later stage of the proceedings.
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:

April 24, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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