Larry Smith v. Gonzales et al

Filing 43

ORDER DENYING 42 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 7/18/19. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:17-cv-00436-DAD-GSA (PC)

LARRY SMITH,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document # 42)

J. GONZALES, et al.,
Defendants.

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On July 11, 2019, plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff

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pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern

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

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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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 of

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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, Plaintiff argues that he is unable to afford counsel, his ability to litigate

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is limited by his imprisonment, and a trial in this case will likely involve conflicting testimony.

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These conditions do not make Plaintiff’s case exceptional. At this stage of the proceedings, the

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court cannot find that Plaintiff is likely to succeed on the merits. 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,” “Plaintiff states cognizable claims against C/Os Fritz and Scaife for failure to

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intercede and protect him, in violation of the Eighth Amendment,” and “Plaintiff states a cognizable

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claim for retaliation against defendant Sgt. Gonzales,” these findings are not a determination that

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Plaintiff is likely to succeed on the merits. (ECF No. 16 at 13:24-26, 15:7-8, 22:6-7.) The legal

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issues in this case are not complex, and based on a review of the record in this case, the court finds

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that plaintiff can adequately articulate his claims. 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 of

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the motion at a later stage of the proceedings.

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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:

July 18, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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