Leslie v. Madrigal et al

Filing 38

ORDER DENYING Motion for Appointment of Counsel 36 , 37 , signed by Magistrate Judge Sheila K. Oberto on 3/19/2019: Plaintiff's motion for the appointment of counsel is HEREBY DENIED, without prejudice and his motion for leave to file an amended complaint is DISREGARDED as moot. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:16-cv-001698 AWI SKO (PC)

DESHAWN D. LESLIE,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Docs. 36, 37)

MADRIGAL, et al.,
Defendants.

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On March 15, 2019, Plaintiff filed a motion seeking the appointment of counsel. (Doc.

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36.) 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 (1989). However, in certain exceptional

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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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 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. Even

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if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, this case is not exceptional. This Court is faced with

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similar cases almost daily and is, as of yet, unable to make a determination that Plaintiff is likely

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to succeed on the merits. Based on a review of the record in this case, the Court does not find that

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plaintiff cannot adequately articulate his claims; nay, the vast majority of his claims survived

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Defendants’ motion to dismiss.

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Plaintiff also filed a motion for leave to file an amended complaint. (Doc. 37.) The order

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adopting the Findings and Recommendations on Defendants’ motion to dismiss granted Plaintiff

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leave to file a fourth amended complaint, curing defects in his allegations under Claim II. (Doc.

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35.) Thus, to the extent that Plaintiff seeks leave to amend his allegations in Claim II, his motion

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is moot since leave has already been given.1
For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY

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DENIED, without prejudice and his motion for leave to file an amended complaint is

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DISREGARDED as moot.

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IT IS SO ORDERED.

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Dated:

March 19, 2019

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE
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Plaintiff’s motion fails to address any of the requirements of Federal Rules of Civil Procedure 15 and/or 16 for
amending pleadings beyond Claim II.

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