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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:16-cv-00922-LJO-GSA (PC)

RONALD TIMBERLAND,
Plaintiff,

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document# 22)

G. MASCARENAS, et al.,
Defendant.

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On April 9, 2018, plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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

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

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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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Aexceptional 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 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. On

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February 27, 2018, the court entered findings and recommendations, recommending that this case

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be dismissed based on plaintiff's failure to state a claim in the First Amended Complaint. (ECF

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No. 18.) Based on the findings and recommendations, the court has determined that plaintiff is

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unlikely to succeed on the merits. In the First Amended Complaint, Plaintiff brings due process

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claims under the Fourteenth Amendment and failure to protect claims under the Eighth

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Amendment. These claims are not complex, and a review of the record shows that plaintiff is

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responsive, adequately communicates, and is able to articulate his claims. Therefore, plaintiff's

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motion shall be denied, without prejudice to renewal of the motion at a later stage of the

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proceedings.
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 10, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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