Garraway v. Ciufo et al

Filing 103

ORDER DENYING 101 Motion to Appoint Counsel and Request for Court Order, signed by Magistrate Judge Gary S. Austin on 3/23/2020. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MITCHELL GARRAWAY,

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Plaintiff,

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v.
JACQUILINE CIUFO, et al.,

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1:17-cv-00533-DAD-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND
REQUEST FOR COURT ORDER
(ECF No. 101.)

Defendants.

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I.

BACKGROUND

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Plaintiff is a federal prisoner proceeding pro se and in forma pauperis with this civil rights

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action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). This case now proceeds with

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Plaintiff’s original Complaint filed on April 17, 2017, against defendants Jacqueline Ciufo (Unit

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Manager), K. Miller (Corrections Officer), and Lieutenant (Lt.) J. Zaragoza (collectively,

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“Defendants”), for failure to protect Plaintiff in violation of the Eighth Amendment. (ECF No. 1.)

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On March 16, 2020, Plaintiff filed a motion seeking the appointment of counsel. (ECF No.

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101.) In addition, Plaintiff requested a court order requiring Defendants to respond to the discovery

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he requested in his motions to compel filed on January 17, 2019 and April 1, 2019. (Id,)
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II.

MOTION FOR APPOINTMENT OF COUNSEL

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Plaintiff requests court-appointed counsel to assist him with the litigation of this case, to

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receive sensitive unredacted discovery material, and to obtain discovery responses from

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Defendants.

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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 represent

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

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Southern 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.
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 complexity

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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. Plaintiff

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argues that he need assistance with discovery. This does not make Plaintiff’s case exceptional. At

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this stage of the proceedings, the court cannot find that Plaintiff is necessarily likely to succeed on

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the merits. While the court has found that “based on its screening of Plaintiff’s Complaint and

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applying the liberal standards of construction required in pro se cases, see Hebbe v. Pliler, 627 F.3d

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338, 342 & n.7 (9th Cir. 2010) (noting court’s “obligation where the petitioner is pro se, particularly in

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civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any

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doubt”), that Plaintiff . . . states a cognizable claim under the Eighth Amendment against defendants

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Ciufo, Miller, and Zaragoza for failing to protect him,” these findings are not a final determination

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that Plaintiff is likely to succeed on the merits. (Findings and Recommendations, ECF No. 11 at

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5:11-17, adopted in full by district judge July 18, 2018, ECF No. 12.) The legal issue in this case

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-- whether Defendants failed to protect him from assault – is not complex. Moreover, based on a

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review of the record in this case, the court finds that Plaintiff can adequately articulate his claim.
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Thus, the court does not find the required exceptional circumstances, and Plaintiff’s motion for

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

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of the proceedings.

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III.

MOTION FOR COURT ORDER

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Plaintiff also requests a court order requiring Defendants to respond to the discovery he

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requested in his motions to compel filed on January 17, 2019 (ECF No. 35) and April 1, 2019 (ECF

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No. 66). This request is moot because both of Plaintiff’s motions to compel were recently resolved

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by the court. On March 9, 2020, the court issued an order denying Plaintiff’s first motion to compel,

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without prejudice to renewal of the motion, (ECF No. 98), and on March 16, 2020, the court issued

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an order granting Plaintiff’s second motion to compel and ordering Defendants to respond to

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Plaintiff’s motion for production of documents, (ECF No. 100). Thus, the motions to compel are

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resolved and Plaintiff’s request for a court order shall be denied as moot.

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IV.

CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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DENIED, without prejudice; and

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Plaintiff’s motion for the appointment of counsel, filed on March 16, 2020, is

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Plaintiff’s request for a court order requiring Defendants to respond to Plaintiff’s
discovery is DENIED as moot.

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IT IS SO ORDERED.
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Dated:

March 23, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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