Luster v. Amezcua et al

Filing 54

ORDER DENYING 51 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 3/7/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:16-cv-00554-LJO-GSA (PC)

DAPHNYE S. LUSTER,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document# 51)

RAUL H. AMEZCUA, et al.,
Defendants.

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On February 21, 2019, 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. Rowland,

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

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Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the

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Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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section 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 of

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the merits [and] the ability of the [plaintiff] to articulate her 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, Plaintiff argues that she is unable to afford counsel and needs assistance

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with discovery, gathering of evidence, access to evidence, organizing evidence, and preparing to

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bring this case to trial. Plaintiff also asserts that she lacks a thorough understanding of the Rules

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of Federal Procedure and the Local Rules. These conditions alone do not make Plaintiff’s case

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exceptional under the Ninth Circuit’s standards discussed above. While the court found that

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“Plaintiff states a cognizable claim for retaliation against defendant Lt. Amezcua,” this finding is

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not a determination that Plaintiff is likely to succeed on the merits, and at this juncture the court is

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unable to determine whether Plaintiff is likely to succeed. (ECF No. 26 at 12:14-15.) Plaintiff’s

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retaliation claim does not appear complex and based on a review of the record in this case, it appears

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that Plaintiff can adequately articulate her claims. Thus, the court does not find the required

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exceptional circumstances, and Plaintiff’s motion shall be denied without prejudice to renewal of

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the motion at a later stage of the proceedings.

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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:

March 7, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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