Sierra v. Spearman et al

Filing 73

ORDER DENYING Plaintiff's Motion for Appointment of Pro Bono Counsel without prejudice 72 signed by Magistrate Judge Erica P. Grosjean on 11/30/2021. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRANCISCO SIERRA,

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Plaintiff,

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v.
J. CASTELLANOS,

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Case No. 1:17-cv-01691-DAD-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF PRO BONO
COUNSEL WITHOUT PREJUDICE
(ECF NO. 72)

Defendant.

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Plaintiff Francisco Sierra is a state inmate proceeding pro se and in forma pauperis in this

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civil rights action. On November 29, 2021, Plaintiff filed a motion for appointment of pro bono

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counsel. (ECF No. 72). Generally, Plaintiff asks for appointment of counsel because he cannot

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afford to hire counsel, his incarceration limits his ability to litigate, the issues in this case are

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complex, and Plaintiff has limited knowledge of the law and limited access to legal materials.

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(Id.)

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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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952

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(9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28

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U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

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490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request

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the voluntary assistance of counsel 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, a 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. (citation and internal quotation marks omitted).
The Court will not order appointment of pro bono counsel at this time. The Court has

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reviewed the record in this case, and at this time the Court is unable to determine that Plaintiff is

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likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can adequately

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articulate his claims, as evidenced, in part, by his successful opposition to Defendant J.

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Castellanos’ motion for summary judgment. (See ECF Nos. 58, 70).
Plaintiff is advised that he is not precluded from renewing his motion for appointment of

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pro bono counsel at a later stage of the proceedings.1
Lastly, the Court notes that the District Judge granted summary judgment as to Defendant

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T. Thompson; however, he still appears as an active party on the docket. (ECF No. 70). The Court

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will direct the Clerk to terminate him from the docket.

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For the foregoing reasons, IT IS ORDERED as follows:

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1.

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without prejudice.

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2.

Plaintiff’s motion for appointment of pro bono counsel (ECF No. 72) is DENIED

Plaintiff shall not contact this Court about the status of any cases that he has pending

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before other Judges.

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Additionally, Plaintiff notes his recently filed a case in the Sacramento Division, Case
No. 2:21-cv-2149-KJN, and asks this Court for “assistance” because this case should have been
filed in the Fresno Division. Upon review of the docket, the Court advises Plaintiff that Case No.
2:21-cv-2149-KJN was transferred to the Fresno Division on November 29, 2021, being assigned
Case No. 1:21-cv-1694-SAB.
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3.

The Clerk of Court is directed to terminate Defendant T. Thompson from the docket.

IT IS SO ORDERED.

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Dated:

November 30, 2021

/s/
UNITED STATES MAGISTRATE JUDGE

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