Timberland v. Mascarenas et al

Filing 47

ORDER DENYING Without Prejudice 46 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 12/19/2019. (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# 46)

G. MASCARENAS, et al.,
Defendants.

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On December 6, 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.

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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 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 determining whether

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In the present case, Plaintiff asserts that he is unable to afford counsel. This does not

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make Plaintiff’s case exceptional. At this stage of the proceedings, the court cannot find that

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Plaintiff is likely to succeed on the merits. While the court has found that “Plaintiff states a

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cognizable claim against defendant Mascarenas for failure to protect him under the Eighth

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

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(ECF No. 28 at 13:12-13.) The legal issue in this case, whether defendant Mascarenas failed to

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protect Plaintiff when she caused other inmates to label Plaintiff as a “snitch,” is not complex.

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Moreover, based on a review of the record in this case, the court finds that Plaintiff can

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adequately articulate his claims.

Thus, the court does not find the required exceptional

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

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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:

December 19, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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