Ponce et al v. Washburn et al

Filing 16

ORDER DENYING Plaintiff's 11 & 14 Motion to be Appointed Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 1/7/2022. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RENE LUNA,

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Case No. 1:21-cv-01291-AWI-BAM
Plaintiff,

ORDER DENYING PLAINTIFF’S
MOTION TO BE APPOINTED COUNSEL

v.
(Docs. 11, 14)
OFFICER LOLL; and OFFICER GOMEZ.,
Defendants.

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Plaintiff Rene Luna is a county jail inmate proceeding pro se and in forma pauperis in this

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civil rights action under 42 U.S.C. § 1983. On December 20, 2021 and on January 5, 202,

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Plaintiff filed the two motions requesting that the court appoint him counsel in this action. (Docs.

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11, 14.) Plaintiff explains that he is an indigent inmate with limited resources and supplies as an

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attorney. (Doc. 14. at 1.)

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

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954

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n.1 (9th Cir. 1998). The court cannot require an attorney to represent plaintiff pursuant to 28

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U.S.C. §1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298

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(1989). However, in certain exceptional circumstances the court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a
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reasonable method of securing and compensating counsel, the court will seek volunteer counsel

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only in the most serious and exceptional cases. In determining whether “exceptional

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circumstances exist, a district court must evaluate both the likelihood of success on the merits

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

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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. Even if

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it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. His indigent status and

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incarceration are not sufficient to make this case exceptional. This court is faced with similar

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cases almost daily from indigent, incarcerated plaintiffs alleging excessive force. Further, at this

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early stage in the proceedings, the court cannot make a determination that Plaintiff is likely to

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succeed on the merits. There also is no indication from the record that Plaintiff is unable to

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articulate his claims pro se.

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Accordingly, Plaintiff’s motions for the appointment of counsel are HEREBY DENIED
without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 7, 2022

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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