Cortinas v. Huerta et al
ORDER DENYING 72 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 11/19/2020. (Sant Agata, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
LARRY WILLIAM CORTINAS,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
M. HUERTA, et al.,
On November 12, 2020, plaintiff filed a motion seeking the appointment of counsel.
Plaintiff 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.
“exceptional circumstances exist, the district court must evaluate both the likelihood of success of
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 determining whether
In the present case, Plaintiff appears to seek counsel to assist him with defense of a motion
for summary judgment. He complains that Defendants have wrongly stated that Plaintiff failed to
exhaust his remedies. These conditions do not make Plaintiff’s case exceptional. At this stage of
the proceedings, the court cannot find that Plaintiff is likely to succeed on the merits. While the
court has found that the court finds that “Plaintiff states cognizable claims in the Complaint against
defendants Huerta and Scalia for use of excessive force in violation of the Eighth Amendment, and
against defendant Scalia for retaliation in violation of the First Amendment,” these findings are not
a determination that Plaintiff is likely to succeed on the merits. (ECF No. 9 at 11:16-19.) The legal
issues in this case --whether defendants used excessive force against plaintiff and retaliated against
him -- are not complex. Moreover, based on a review of the record in this case, the court finds that
plaintiff can adequately articulate his claims. Thus, the court does not find the required exceptional
circumstances, and Plaintiff’s motion shall be denied without prejudice to renewal of the motion at
a later stage of the proceedings.
For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.
November 19, 2020
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?