Timberland v. Mascarenas et al

Filing 65

ORDER DENYING 64 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 3/26/2020. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RONALD TIMBERLAND,

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Plaintiff,

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v.
G. MASCARENAS, et al.,

1:16-cv-00922-NONE-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document #64)

Defendant.

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On March 24, 2020, Plaintiff filed a motion seeking the appointment of counsel. (ECF

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No. 64.) Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to

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represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for

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the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to 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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“exceptional 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, the court does not find the required exceptional circumstances.

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Plaintiff argues that he cannot afford the cost of an attorney and requires assistance with

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discovery. While these conditions are challenging for Plaintiff, they do not make his case

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exceptional under the Ninth Circuit law discussed above. At this stage in the proceedings, the

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court cannot make a determination that Plaintiff is likely to succeed on the merits. Defendant’s

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motion for summary judgment is now pending and may dispose of the case. Moreover, based on

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the record in this case, the court finds that Plaintiff is able to adequately articulate his claims and

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respond to the court’s orders.

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Mascarenas failed to protect Plaintiff from harm -- is not complex. Therefore, Plaintiff’s motion

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Further, the legal issue in this case -- whether defendant

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

March 26, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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