Riley v. Tallerico et al

Filing 107

ORDER DENYING 106 Plaintiff's Motion to Appointment of Pro Bono Counsel without prejudice, signed by Magistrate Judge Erica P. Grosjean on 9/12/18. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHANNON RILEY,
Plaintiff,

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v.
TALLERICO and YERRY,

Case No. 1:16-cv-01189-AWI-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF PRO BONO
COUNSEL WITHOUT PREJUDICE
(ECF NO. 106)

Defendants.

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Shannon Riley (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in
this civil rights action filed pursuant to 42 U.S.C. § 1983.
On September 10, 2018, Plaintiff filed a motion for appointment of pro bono counsel.

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(ECF No. 106). Plaintiff asks for appointment of counsel because he has health issues (mental

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and physical), because he is unlearned about § 1983, civil procedure, and the rules of evidence,

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because he is currently engaged in a discovery dispute with Defendants and has not yet been able

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to obtain any relevant documentary evidence, because an attorney could help Plaintiff negotiate a

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settlement, because Plaintiff is unable to take necessary depositions, and because Plaintiff was

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recently transferred and does not have access to his property.

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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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952

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(9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28

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U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

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490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances

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the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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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, a 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 citation omitted).

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The Court will not order appointment of pro bono counsel at this time. The Court has

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reviewed the record in this case, and at this time the Court is unable to make a determination that

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Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can

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adequately articulate his claims.

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Plaintiff is advised that he is not precluded from renewing his motion for appointment of
pro bono counsel at a later stage of the proceedings.
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for appointment of pro
bono counsel is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

September 12, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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