Toscano v. California Department of Corrections, et al.

Filing 14

ORDER denying 13 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 3/1/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:16-cv-01551-AWI-BAM (PC)

BENJAMIN K. TOSCANO,

ORDER DENYING PLAINTIFF’S MOTION
FOR COUNSEL WITHOUT PREJUDICE

v.

(ECF No. 13)

STATE OF CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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Plaintiff Benjamin K. Toscano (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court

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is Plaintiff’s second motion for the appointment of counsel filed on February 27, 2017. Plaintiff

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requests appointment of counsel because he cannot afford to employ an attorney. (ECF No. 13).

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As Plaintiff was previously informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court

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cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v.

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United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814,

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1816 (1989). However, in certain exceptional circumstances the Court may request the voluntary

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assistance of counsel 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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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success on

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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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Beyond an assertion that he is unable to afford counsel, Plaintiff has not identified any

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circumstances warranting appointment of counsel. Even if it is assumed that Plaintiff is not well

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versed in the law and that he has made serious allegations which, if proved, would entitle him to

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relief, his case is not exceptional. This Court is faced with similar cases almost daily. Further, at

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this early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely

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to succeed on the merits. Plaintiff’s complaint has not been screened and there has been no

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finding that Plaintiff has stated cognizable claims. Additionally, based on a review of the record

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in this case, the Court does not find that Plaintiff cannot adequately articulate his claims.

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For these reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.

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IT IS SO ORDERED.
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Dated:

/s/ Barbara

March 1, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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