Toscano v. California Department of Corrections, et al.
ORDER denying 13 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 3/1/2017. (Lundstrom, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
BENJAMIN K. TOSCANO,
ORDER DENYING PLAINTIFF’S MOTION
FOR COUNSEL WITHOUT PREJUDICE
(ECF No. 13)
STATE OF CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION, et al.,
Plaintiff Benjamin K. Toscano (“Plaintiff”) is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court
is Plaintiff’s second motion for the appointment of counsel filed on February 27, 2017. Plaintiff
requests appointment of counsel because he cannot afford to employ an attorney. (ECF No. 13).
As Plaintiff was previously informed, he does not have a constitutional right to appointed
counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court
cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v.
United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814,
1816 (1989). However, in certain exceptional circumstances the Court may request the voluntary
assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the Court will seek
volunteer counsel only in the most serious and exceptional cases.
In determining whether
Aexceptional circumstances exist, the district court must evaluate both the likelihood of success on
the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).
In the present case, the Court does not find the required exceptional circumstances.
Beyond an assertion that he is unable to afford counsel, Plaintiff has not identified any
circumstances warranting appointment of counsel. Even if it is assumed that Plaintiff is not well
versed in the law and that he has made serious allegations which, if proved, would entitle him to
relief, his case is not exceptional. This Court is faced with similar cases almost daily. Further, at
this early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely
to succeed on the merits. Plaintiff’s complaint has not been screened and there has been no
finding that Plaintiff has stated cognizable claims. Additionally, based on a review of the record
in this case, the Court does not find that Plaintiff cannot adequately articulate his claims.
For these reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.
March 1, 2017
UNITED STATES MAGISTRATE JUDGE
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