(PC) Borhan v. McKesson

Filing 9

ORDER DENYING 8 Motion to Appoint Counsel, without Prejudice, signed by Magistrate Judge Gary S. Austin on 06/03/2021. (Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

1:21-cv-00218-GSA (PC)

PAYMAN BORHAN,

12

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE

Plaintiff,

13

v.

14

J. McKESSON,

15

(Document# 8)
Defendant.

16
17
18
19

I.

BACKGROUND

20

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights

21

action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on

22

February 22, 2021. (ECF No. 1.) On May 27, 2021, plaintiff filed a motion seeking the

23

appointment of counsel. (ECF No. 8.)

24

II.

MOTION FOR APPOINTMENT OF COUNSEL

25

Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

26

Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent

27

plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the

28

Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain
1

1

exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

2

section § 1915(e)(1). Rand, 113 F.3d at 1525.

3

Without a reasonable method of securing and compensating counsel, the court will seek

4

volunteer counsel only in the most serious and exceptional cases.

5

exceptional circumstances exist, the district court must evaluate both the “likelihood of success of

6

the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity

7
8
9
10

In determining whether

of the legal issues involved.” Id. (internal quotation marks and citations omitted)
In the present case, 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 filed the Complaint on February 22, 2021, less than three months
ago, and the Complaint awaits the court’s screening required under 28 U.S.C. 1915. Thus, to date

11
the Court has not found any cognizable claims in plaintiff’s Complaint for which to initiate service
12
13
14
15
16
17

of process, and no other parties have yet appeared. Plaintiff’s claims for adverse conditions of
confinement are not complex, and 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, plaintiff’s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.

18
19
20
21

IT IS SO ORDERED.
Dated:

June 3, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
2