(PC) Gann v. Valley State Prison et al

Filing 27

ORDER DENYING 25 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 3/31/2021. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:19-cv-01797-DAD-GSA (PC)

NATHANIEL MARCUS GANN,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(Document# 25)

VALLEY STATE PRISON, et al.,
Defendants.

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On March 25, 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

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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.

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The Court does not find the required exceptional circumstances. At this early stage in the

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proceedings, the court cannot make a determination that Plaintiff is likely to succeed on the

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merits. Plaintiff’s First Amended Complaint was screened on March 11, 2021, and he was

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granted leave to either proceed with First Amended Complaint or file a Second Amended

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Complaint. To date, Plaintiff has not filed a Second Amended Complaint or notified the court he

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is willing to proceed with the claims found cognizable by the court in the First Amended

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Complaint. Thus, at this juncture, there is no complaint on record for which the court can

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proceed. It is too early for service of process, and no other parties have yet appeared. Moreover,

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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 the Court’s orders. Plaintiff is advised that he is not precluded from renewing the

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motion for appointment of counsel 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:

March 31, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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