Garraway v. Ciufo et al

Filing 31

ORDER DENYING 30 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 1/9/19. (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-00533-DAD-GSA (PC)

MITCHELL GARRAWAY,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document# 30)

JACQUILINE CIUFO, et al.,
Defendants.

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On January 2, 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

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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, Plaintiff argues that the facility where he is incarcerated has remained

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on lockdown for much of 2018, preventing him from earning wages to purchase supplies needed to

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litigate this action and visiting the law library to make copies, conduct research, and devise legal

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strategy. Plaintiff also seeks counsel to act as custodian for discovery. While these conditions

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make it challenging for Plaintiff to litigate his case, they do not make Plaintiff’s case exceptional

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under the law. At this stage of the proceedings, the court cannot find that Plaintiff is likely to

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

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Complaint and applying the liberal standards of construction required in pro se cases, see Hebbe v.

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Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (noting court’s ‘obligation where the petitioner is

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pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt’), that Plaintiff has pleaded sufficient factual content to state a

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plausible claim for relief,” these findings are not a determination that Plaintiff is likely to succeed

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on the merits. (ECF No. 11 at 5:11-15, adopted by ECF No. 12.) The legal issue in this case --

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whether defendants failed to protect Plaintiff from harm -- 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 claims.

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

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be denied without prejudice to renewal of 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:

January 9, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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