Timberland v. Mascarenas et al

Filing 39

ORDER DENYING 38 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 02/14/19. (Martin-Gill, 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# 38)

G. MASCARENAS, et al.,
Defendants.

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On January 28, 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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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success

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of 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, Plaintiff argues that he is unable to afford counsel, has limited access to

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the law library, and has very limited knowledge of the law. Plaintiff is currently serving a 17 month

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term in the Security Housing Unit. After his SHU term is over, he expects to be transferred and

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will lack access to his property for up to a period of 1 to 2 months. Plaintiff also states that he

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suffers from dyslexia and a seizure disorder.

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These conditions alone do not make Plaintiff’s case exceptional. While the court has found

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that “Plaintiff states a cognizable claim against defendant Mascarenas for failure to protect him under

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the Eighth Amendment,” this finding is not a determination that Plaintiff is likely to succeed on the

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merits. (ECF No. 28 at 13:12-13.) Plaintiff’s Eighth Amendment failure-to-protect claims do not

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appear complex, and based on a review of the record in this case, it appears that Plaintiff can

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adequately articulate his claims.

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

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a later stage of the proceedings.

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Thus, the court does not find the required exceptional

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:

February 14, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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