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