Larry Smith v. Gonzales et al
ORDER DENYING 123 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 9/15/2022. (Marrujo, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SERGEANT J. GONZALES, et al.,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 123.)
On July 28, 2022, Plaintiff filed a motion seeking the appointment of counsel. (ECF No.
119.) 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. In determining whether
“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 the present case, the court does not find the required exceptional circumstances.
Plaintiff seeks appointment of counsel because he cannot afford to retain counsel, his
imprisonment will greatly limit his ability to litigate, the issues in this case are complex, plaintiff
has limited access to the law library and very limited knowledge of the law, he has been
quarantined two or three times, he doesn’t understand or know how to use discovery or collect
evidence, he suffers from depression and hears music all the time, he only has a tenth grade
education, and an attorney would better enable Plaintiff to present evidence and cross-examine
witnesses. These are not exceptional circumstances under the law.
This case now proceeds with Plaintiff’s First Amended Complaint filed on June 23, 2017,
against defendants Sergeant Gonzales, Correctional Officer (C/O) Johnson, C/O Castro, C/O
Meier, 1 C/O Flores, 2 and C/O Potzernitz for use of excessive force in violation of the Eighth
Amendment; against defendant C/O Scaife for failure to protect Plaintiff in violation of the
Eighth Amendment; and against defendant Sergeant Gonzales for retaliation in violation of the
First Amendment. (ECF No. 12.) On October 5, 2018, the Court found these claims to be
cognizable. (ECF No. 25.) However, this finding is not a determination that Plaintiff is likely to
succeed on the merits.
Plaintiff alleges that the issues in this case are complex. In the Court’s view, Plaintiff’s
claims are not complex, and based on a review of the record in this case, Plaintiff can adequately
articulate his claims and respond to court orders. 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.
Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel
is HEREBY DENIED, without prejudice.
IT IS SO ORDERED.
September 15, 2022
/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?