(PC) Edwards v. Smith
ORDER DENYING 8 Motion to Appoint Counsel, without prejudice, signed by Magistrate Judge Gary S. Austin on 05/09/2022. (Martin-Gill, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CHARLES A. EDWARDS,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 8.)
D. SMITH, et al.,
On March 23, 2022, Plaintiff filed a motion seeking the appointment of counsel. (ECF
No. 8.) 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 § 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.” Id. (internal quotation marks and citations omitted).
Plaintiff seeks counsel because he suffers from schizophrenia and a disability that makes
it difficult for him to read, write, and/or understand material regarding his case. This does not
make Plaintiff’s case exceptional under the law. 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 awaits the court’s screening required under 28 U.S.C. § 1915. Thus, to date
the court has not found any cognizable claims in Plaintiff’s complaint for which to initiate service
of process, and no other parties have yet appeared. The legal issue in this case, whether
defendants used excessive force against Plaintiff, is not complex. Moreover, based on a review
of the record in this case, the court finds that Plaintiff can adequately articulate his claims.
Therefore, Plaintiff’s motion shall be denied, without prejudice to renewal of the motion at a later
stage of the proceedings..
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s motion for
appointment of counsel, filed on March 23, 2022, is denied without prejudice.
IT IS SO ORDERED.
May 9, 2022
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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