Larry Smith v. Gonzales et al

Filing 113

ORDER DENYING 111 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 5/9/2022. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY SMITH,

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Plaintiff,
v.
SERGEANT J. GONZALES, et al.,

1:17-cv-00436-DAD-GSA-PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 111.)

Defendants.

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On May 5, 2022, plaintiff filed a motion seeking the appointment of counsel. (ECF No.

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111.) 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

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for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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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 d etermining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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of 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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Plaintiff seeks appointment of counsel because he cannot afford counsel, his

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imprisonment will greatly limit his ability to litigate, the issues in his case are complex, Plaintiff

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has limited knowledge of the law, Plaintiff has two other pending cases, Plaintiff was recently

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housed at the California Health Care facility last year for suicide and depression, Plaintiff is

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having trouble remembering things, and Plaintiff only has a tenth grade education.

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These are not exceptional circumstances under the law. While the court has found that

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Plaintiff states cognizable claims in the First Amended Complaint against defendants Sgt.

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Gonzales, C/O Johnson, C/O Castro, C/O Miner, C/O Florez, and C/O Potzernitz for use of

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excessive force under the Eighth Amendment; against C/O Scaife for failure to intercede and

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protect him, in violation of the Eighth Amendment; and, defendant Sgt. Gonzales for retaliation

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in violation of the First Amendment, this finding is not a determination that Plaintiff is likely to

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succeed on the merits. (ECF No. 16 at 22.) Plaintiff’s claims are not complex, and based on a

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review of the record in this case, Plaintiff can adequately articulate his claims and respond to

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court orders. Thus, the court does not find the required exceptional circumstances, and Plaintiff’s

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motion shall be denied without prejudice to renewal of the motion at a later stage of the

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proceedings.

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Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel
is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

May 9, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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