Larry Smith v. Gonzales et al

Filing 120

ORDER DENYING 119 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 06/13/2022. (Martin-Gill, 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. 119.)

Defendants.

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On May 16, 2022, plaintiff filed a motion seeking the appointment of counsel. (ECF No.

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119.) 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 determining 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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In the present case, the court does not find the required exceptional circumstances.

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Plaintiff seeks appointment of counsel because in the past he missed a deadlines to respond to

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the Court’s November 15, 2021 order concerning settlement; he did not understand the discovery

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deadline; he has suffered with major depression and audio hallucination (hears music all the

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time); he has two other lawsuits; he is overwhelmed because he is off his pain medication, and

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his present housing situation is stressful due to case 2:20-cv-01004-CKO, which sues 40 staff

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members for use of excessive force and covering it up in July 30, 2016.

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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 against defendants Sgt. Gonzales, C/O Johnson, C/O Castro,

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C/O Miner, C/O Florez, and C/O Potzernitz for use of excessive force under the Eighth

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Amendment; against C/Os Fritz and Scaife for failure to intercede and protect him, in violation

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

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Amendment,” this finding is not a determination that Plaintiff is likely to succeed on the merits.

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(ECF No. 16 at 9-13.) Plaintiff’s claims are not complex, and based on a review of the record in

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this case, Plaintiff can adequately articulate his claims and respond to court orders. Thus, the

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court does not find the required exceptional circumstances, and Plaintiff’s motion shall be denied

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without prejudice to renewal of the motion at a later stage of the 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:

June 13, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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