Cortinas v. Huerta et al

Filing 73

ORDER DENYING 72 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 11/19/2020. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 1:17-cv-00130-AWI-GSA (PC) LARRY WILLIAM CORTINAS, Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL v. (Document# 72) M. HUERTA, et al., Defendants. 16 17 On November 12, 2020, plaintiff filed a motion seeking the appointment of counsel. 18 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 19 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff 20 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District 21 of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional 22 circumstances the court may request the voluntary assistance of counsel pursuant to section 23 1915(e)(1). Rand, 113 F.3d at 1525. 24 Without a reasonable method of securing and compensating counsel, the court will seek 25 volunteer counsel only in the most serious and exceptional cases. 26 “exceptional circumstances exist, the district court must evaluate both the likelihood of success of 27 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity 28 of the legal issues involved.” Id. (internal quotation marks and citations omitted). 1 In determining whether 1 In the present case, Plaintiff appears to seek counsel to assist him with defense of a motion 2 for summary judgment. He complains that Defendants have wrongly stated that Plaintiff failed to 3 exhaust his remedies. These conditions do not make Plaintiff’s case exceptional. At this stage of 4 the proceedings, the court cannot find that Plaintiff is likely to succeed on the merits. While the 5 court has found that the court finds that “Plaintiff states cognizable claims in the Complaint against 6 7 8 9 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 10 plaintiff can adequately articulate his claims. Thus, the court does not find the required exceptional 11 12 13 14 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. 15 16 17 18 IT IS SO ORDERED. Dated: November 19, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

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