(PC) Marceleno v. California Department of Corrections and Rehabiliation ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIK ABELINO MARCELENO, 1:17-cv-01136 LJO-GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 CALIFORNIA DEPARTMENT OF (Document# 27) CORRECTIONS AND 15 REHABILITATION, et al, 16 Defendants. 17 18 19 On August 9, 2019, plaintiff filed a motion seeking the appointment of counsel. Plaintiff 20 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 21 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff 22 pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern 23 District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 24 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 25 section 1915(e)(1). Rand, 113 F.3d at 1525. 26 Without a reasonable method of securing and compensating counsel, the court will seek 27 volunteer counsel only in the most serious and exceptional cases. In determining whether 28 “exceptional circumstances exist, the district court must evaluate both the likelihood of success of 1 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 2 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 3 In the present case, the court does not find the required exceptional circumstances. 4 Plaintiff asserts that he does not have adequate access to the law library, the prison is under lock- 5 down, and his chronic pain makes it difficult for him to litigate this case. These conditions do not 6 make plaintiff’s case exceptional under the law. At this stage in the proceedings, the court cannot 7 make a determination that plaintiff is likely to succeed on the merits. While the court has found 8 that “Plaintiff states a cognizable claim against defendant Mora for use of excessive force in 9 violation of the Eighth Amendment,” this finding is not a determination that plaintiff is likely to 10 succeed on the merits. (ECF No. 18 at 5:27-28.) Service of process is underway, but the 11 defendant has not appeared in the case. Based on the record in this case, plaintiff is able to 12 adequately articulate his claims. Further, the legal issue in this case B whether defendant Mora 13 used excessive force against plaintiff B is not complex. Therefore, plaintiff=s motion shall be 14 denied without prejudice to renewal of the motion at a later stage of the proceedings. 15 For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY 16 DENIED, without prejudice. 17 IT IS SO ORDERED. 18 19 Dated: August 22, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28