(PC) Gann v. Valley State Prison et al
ORDER DENYING 25 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 3/31/2021. (Lundstrom, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
NATHANIEL MARCUS GANN,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
VALLEY STATE PRISON, et al.,
On March 25, 2021, plaintiff filed a motion seeking the appointment of counsel. Plaintiff
does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113
F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff
pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern
District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain
exceptional circumstances the court may request the voluntary assistance of counsel pursuant to
section § 1915(e)(1). Rand, 113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the court will seek
volunteer counsel only in the most serious and exceptional cases. In determining whether
“exceptional circumstances” exist, the district court must evaluate both the likelihood of success
of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
complexity of the legal issues involved.
The Court does not find the required exceptional circumstances. At this early stage in the
proceedings, the court cannot make a determination that Plaintiff is likely to succeed on the
merits. Plaintiff’s First Amended Complaint was screened on March 11, 2021, and he was
granted leave to either proceed with First Amended Complaint or file a Second Amended
Complaint. To date, Plaintiff has not filed a Second Amended Complaint or notified the court he
is willing to proceed with the claims found cognizable by the court in the First Amended
Complaint. Thus, at this juncture, there is no complaint on record for which the court can
proceed. It is too early for service of process, and no other parties have yet appeared. Moreover,
based on the record in this case, the Court finds that Plaintiff can adequately articulate his claims
and respond to the Court’s orders. Plaintiff is advised that he is not precluded from renewing the
motion for appointment of counsel at a later stage of the proceedings.
For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.
March 31, 2021
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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