Petillo v. Galliger et al

Filing 62

ORDER DENYING 59 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 12/10/2021. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISAIAH J. PETILLO,

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Plaintiff,

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vs.

1:18-cv-00217-NONE-GSA-PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 59.)

GALLIGER, et al.,
Defendants.

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On December 6, 2021, Plaintiff filed a motion seeking the appointment of counsel.

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

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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 (1989).

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525.

However, in certain exceptional

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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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Defendants have filed a motion for summary judgment to dismiss this case based on Plaintiff’s

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failure to exhaust administrative remedies, which makes it unlikely that Plaintiff will succeed on

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the merits. Plaintiff’s claims for excessive force, failure to protect, and retaliation are not

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complex, and a review of the record in this case shows that Plaintiff is responsive, adequately

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communicates, and is able to articulate his claims.

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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 10, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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