Timberland v. Mascarenas et al

Filing 24

ORDER DENYING 22 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 4/10/2018. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 1:16-cv-00922-LJO-GSA (PC) RONALD TIMBERLAND, Plaintiff, 13 14 15 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL v. (Document# 22) G. MASCARENAS, et al., Defendant. 16 17 On April 9, 2018, plaintiff filed a motion seeking the appointment of counsel. Plaintiff 18 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 19 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff 20 pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern 21 District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 22 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 23 section 1915(e)(1). Rand, 113 F.3d at 1525. 24 Without a reasonable method of securing and compensating counsel, the court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of 27 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted). 1 1 In the present case, the court does not find the required exceptional circumstances. On 2 February 27, 2018, the court entered findings and recommendations, recommending that this case 3 be dismissed based on plaintiff's failure to state a claim in the First Amended Complaint. (ECF 4 No. 18.) Based on the findings and recommendations, the court has determined that plaintiff is 5 unlikely to succeed on the merits. In the First Amended Complaint, Plaintiff brings due process 6 claims under the Fourteenth Amendment and failure to protect claims under the Eighth 7 Amendment. These claims are not complex, and a review of the record shows that plaintiff is 8 responsive, adequately communicates, and is able to articulate his claims. Therefore, plaintiff's 9 motion shall be denied, without prejudice to renewal of the motion at a later stage of the 10 11 12 proceedings. For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY DENIED, without prejudice. 13 14 15 IT IS SO ORDERED. Dated: April 10, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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