Berringer v. Uriate

Filing 24

ORDER DENYING 23 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 4/20/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY SCOTT BERRINGER,

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Plaintiff,
v.

1:18-cv-00269 AWI GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 23)

S. URIATE,
Defendant.

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On April 19, 2018, 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, the court does not find the required exceptional circumstances.

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Plaintiff asserts that he has a low cognitive disability under the ADA and has difficulty litigating

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his case. However, even if Plaintiff were an expert litigator, the court cannot find, at this stage of

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the proceedings, that plaintiff is likely to succeed on the merits. On March 26, 2018, the court

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issued findings and recommendations finding that Plaintiff has “three strikes” under 28 U.S.C. §

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1915(g), and recommending that he be required to pay the $400.00 filing fee in full before the

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case goes forward. (ECF No. 12.) Therefore, Plaintiff's motion shall be denied, without

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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:

April 20, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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