Larry Smith v. Gonzales et al

Filing 135

ORDER DENYING 132 Motion for Appointment of Counsel, signed by Magistrate Judge Gary S. Austin on 12/06/2022. (Maldonado, C)

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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-ADA-GSA-PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 132.)

Defendants.

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On November 29, 2022, Plaintiff filed a motion seeking the appointment of counsel.

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(ECF No. 132.) Plaintiff does not have a constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney

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to 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 he cannot afford to retain counsel, his

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

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has limited access to the law library and very limited knowledge of the law, a trial in this case

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will likely involve conflicting testimony and an attorney would better enable Plaintiff to present

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evidence and cross-examine witnesses; and he has ongoing medical issues with his back and

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spine. These are not exceptional circumstances under the law.

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This case now proceeds with Plaintiff’s First Amended Complaint filed on June 23, 2017,

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against defendants Sergeant Gonzales, Correctional Officer (C/O) Johnson, C/O Castro, C/O

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Meier, 1 C/O Flores, 2 and C/O Potzernitz for use of excessive force in violation of the Eighth

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Amendment; against defendant C/O Scaife for failure to protect Plaintiff in violation of the

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Eighth Amendment; and against defendant Sergeant Gonzales for retaliation in violation of the

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First Amendment. (ECF No. 12.) On October 5, 2018, the Court found these claims to be

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cognizable. (ECF No. 25.) However, this finding is not a determination that Plaintiff is likely to

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succeed on the merits.

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Plaintiff alleges that the issues in this case are complex. In the Court’s view, Plaintiff’s

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claims are not complex, and based on a review of the record in this case, Plaintiff can adequately

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articulate his claims and respond to court orders. Thus, the Court does not find the required

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exceptional circumstances, and Plaintiff’s motion shall be denied without prejudice to renewal

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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:

December 6, 2022

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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