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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:16-cv-00420-LJO-BAM (PC)

EDWARD FURNACE,

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Plaintiff,

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v.

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ORDER DENYING MOTION TO APPOINT
COUNSEL WITHOUT PREJUDICE

B. COPE, et al,

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(ECF No. 25)
Defendants.

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Plaintiff Edward Furnace (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. On May 23, 2016, Plaintiff filed a

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motion to appoint counsel, arguing that he required the assistance of counsel to assist with

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gaining the identity of a John Doe defendant in time to comply with the deadline for service of

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the defendants under Federal Rule of Civil Procedure 4(m). (ECF No. 11.) The Court denied the

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motion, finding that the matter did not present exceptional circumstances, and Plaintiff’s duties

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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.)

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Plaintiff again argues that he requires appointed counsel to assist with gaining the identity of

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Defendant John Doe in time to comply with Federal Rule of Civil Procedure 4(m).

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Plaintiff is reminded that he does not have a constitutional right to appointed counsel in

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this civil action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot

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require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S.

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Dist. Ct. for the S. Dist. 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. Without a reasonable method of securing and compensating

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counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate both the

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likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se

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in light of the complexity of the legal issues involved.” Id. (internal quotation marks and citations

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omitted).
The Court has considered Plaintiff’s renewed motion for the appointment of counsel, but

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again does not find the required exceptional circumstances. As previously indicated, Plaintiff’s

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indigent circumstances, the complexity of the case, and Plaintiff’s limited knowledge of the law

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do not make his case exceptional. This Court is faced with similar cases almost daily. Further, at

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this early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely

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to succeed on the merits, and based on a review of the record in this case, the court does not find

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that Plaintiff cannot adequately articulate his claims. Id.

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Regarding Plaintiff’s argument that he requires appointed counsel to assist with

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identifying Defendant John Doe and service of the complaint, that argument remains premature.

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Plaintiff filed a second amended complaint on August 14, 2017. (ECF No. 24.) The Court is

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required to screen complaints brought by prisoners seeking relief against a governmental entity or

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officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Thus, Plaintiff’s second

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amended complaint cannot be served until it has been properly screened. If Plaintiff’s complaint

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survives screening, a subsequent order regarding service will follow. Thus, Plaintiff’s duties

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regarding service of the complaint, including under Rule 4(m), have not yet been triggered in this

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matter.

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For the foregoing reasons, Plaintiff=s motion to appoint counsel (ECF No. 25) is HEREBY
DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 23, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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