Rushdan v. Davey et al.

Filing 77

ORDER DENYING 75 Motion for Appointment of Counsel, signed by Magistrate Judge Gary S. Austin on 6/25/2020. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Plaintiff,

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1:16-cv-00988-NONE-GSA (PC)

SALADIN RUSHDAN aka
ROBERT STANLEY WOODS,

v.

(Document #75)

D. DAVEY, et al.,
Defendants.
On June 23, 2020, 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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“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 the present case, the Court does not find the required exceptional circumstances.

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Plaintiff argues that his physical disabilities, the Coronavirus outbreak, and his incarceration

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make it very difficult to litigate his case. While these conditions are challenging, these conditions

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alone do not make plaintiff’s case exceptional under the law. While the Court has found that

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“Plaintiff states a cognizable claim against defendant Casas for use of excessive force in violation

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

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the merits, and at this juncture the court cannot make a determination that plaintiff is likely to

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succeed on the merits. (ECF No. 29 at 9:13-14.) Plaintiff’s excessive force claims are not

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complex, and based on a review of the record in this case, plaintiff is able to adequately articulate

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his claims. Thus, the Court does not find the required exceptional circumstances, and 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.

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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:

June 25, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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