(PC) Popovich v. Igbinosa ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK JOSEPH POPOVICH, 1:19-cv-01758 GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 NGOZI IGBINOSA, et al., (Document# 8 & 9) 15 Defendants. 16 17 On December 30, 2019 and December 31, 2019, plaintiff filed identical motions seeking 18 the appointment of counsel. Plaintiff does not have a constitutional right to appointed counsel in 19 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require 20 an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States 21 District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). 22 However, in certain exceptional circumstances the court may request the voluntary assistance of 23 counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 24 Without a reasonable method of securing and compensating counsel, the court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 “exceptional circumstances exist, the district court must evaluate both the likelihood of success of 27 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 1 In the present case, the court does not find the required exceptional circumstances. 2 Plaintiff’s indigency does not make his case exceptional. At this early stage in the proceedings, 3 the court cannot make a determination that plaintiff is likely to succeed on the merits. Plaintiff 4 filed the Complaint on December 14, 2019, less than a month ago, and the Complaint awaits the 5 court’s screening required under 28 U.S.C. § 1915. Thus, to date the court has not found any 6 cognizable claims in plaintiff’s Complaint for which to initiate service of process, and no other 7 parties have yet appeared. Plaintiff’s medical and retaliation claims are not complex. Moreover, 8 based on a review of the record in this case, the court finds that plaintiff can adequately articulate 9 his claims. Therefore, plaintiff’s motions shall be denied without prejudice to renewal of the 10 motion at a later stage of the proceedings. 11 For the foregoing reasons, plaintiff’s motions for the appointment of counsel are 12 HEREBY DENIED, without prejudice. 13 IT IS SO ORDERED. 14 15 Dated: January 2, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28