(PC) Dosio v. Odeluga et al

Filing 26

ORDER DENYING 25 Motion for Appointment of Counsel, signed by Magistrate Judge Gary S. Austin on 06/03/2021. (Maldonado, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:19-cv-00675-DAD-GSA (PC)

ELMER DOSIO,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document #25)

ODELUGA, et al.,
Defendants.

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On May 26, 2021, 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. At this

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stage of the proceedings, the court cannot make a determination that plaintiff is likely to succeed

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on the merits. Defendant Fernandez has not yet filed an answer or other responsive pleading.

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Based on the record in this case, the court finds that plaintiff can adequately articulate his claims

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and respond to court orders. Further, the legal issue in this case, whether defendant Fernandez

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denied plaintiff adequate medical care in violation of the Eighth Amendment, does not appear

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complex. Therefore, plaintiff’s motion shall be denied without prejudice to renewal of the motion

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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:

June 3, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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