Furnace v. Cope et al

Filing 27

ORDER Denying 25 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 8/23/17. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 1:16-cv-00420-LJO-BAM (PC) EDWARD FURNACE, 12 Plaintiff, 13 v. 14 ORDER DENYING MOTION TO APPOINT COUNSEL WITHOUT PREJUDICE B. COPE, et al, 15 (ECF No. 25) Defendants. 16 17 Plaintiff Edward Furnace (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 19 pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. On May 23, 2016, Plaintiff filed a 20 motion to appoint counsel, arguing that he required the assistance of counsel to assist with 21 gaining the identity of a John Doe defendant in time to comply with the deadline for service of 22 the defendants under Federal Rule of Civil Procedure 4(m). (ECF No. 11.) The Court denied the 23 motion, finding that the matter did not present exceptional circumstances, and Plaintiff’s duties 24 regarding service had not yet been triggered. (ECF No. 12.) On August 14, 2017, Plaintiff filed a renewed motion to appoint counsel. (ECF No. 25.) 25 26 Plaintiff again argues that he requires appointed counsel to assist with gaining the identity of 27 Defendant John Doe in time to comply with Federal Rule of Civil Procedure 4(m). 28 /// 1 1 Plaintiff is reminded that he does not have a constitutional right to appointed counsel in 2 this civil action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot 3 require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. 4 Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 5 circumstances the Court may request the voluntary assistance of counsel pursuant to section 6 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating 7 counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In 8 determining whether “exceptional circumstances exist, the district court must evaluate both the 9 likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se 10 in light of the complexity of the legal issues involved.” Id. (internal quotation marks and citations 11 omitted). The Court has considered Plaintiff’s renewed motion for the appointment of counsel, but 12 13 again does not find the required exceptional circumstances. As previously indicated, Plaintiff’s 14 indigent circumstances, the complexity of the case, and Plaintiff’s limited knowledge of the law 15 do not make his case exceptional. This Court is faced with similar cases almost daily. Further, at 16 this early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely 17 to succeed on the merits, and based on a review of the record in this case, the court does not find 18 that Plaintiff cannot adequately articulate his claims. Id. 19 Regarding Plaintiff’s argument that he requires appointed counsel to assist with 20 identifying Defendant John Doe and service of the complaint, that argument remains premature. 21 Plaintiff filed a second amended complaint on August 14, 2017. (ECF No. 24.) The Court is 22 required to screen complaints brought by prisoners seeking relief against a governmental entity or 23 officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Thus, Plaintiff’s second 24 amended complaint cannot be served until it has been properly screened. If Plaintiff’s complaint 25 survives screening, a subsequent order regarding service will follow. Thus, Plaintiff’s duties 26 regarding service of the complaint, including under Rule 4(m), have not yet been triggered in this 27 matter. 28 /// 2 1 2 For the foregoing reasons, Plaintiff=s motion to appoint counsel (ECF No. 25) is HEREBY DENIED, without prejudice. 3 4 5 IT IS SO ORDERED. Dated: /s/ Barbara August 23, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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