(PC) Asberry v. Biter ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TONY ASBERRY, Case No. 1:16-cv-01741-LJO-JDP 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. ECF No. 172 14 C. RELEVANTE, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel, moves for counsel for the third time 18 in this case. ECF No. 172. Plaintiff does not have a constitutional right to appointed counsel in 19 this action, see Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the 20 authority to require an attorney to represent plaintiff. See Mallard v. U.S. District Court for the 21 Southern District of Iowa, 490 U.S. 296, 298 (1989). The court may request the voluntary 22 assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to 23 represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. However, without a 24 means to compensate counsel, the court will seek volunteer counsel only in exceptional 25 circumstances. In determining whether such circumstances exist, “the district court must evaluate 26 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 27 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 28 (internal quotation marks and citations omitted). 1 The court cannot conclude that exceptional circumstances requiring the appointment of 2 | counsel are present here. The allegations in the complaint are not exceptionally complicated. 3 | Based on a review of the record, it is not apparent that plaintiff is unable to articulate his claims 4 | adequately. Further, plaintiff has not demonstrated that he is likely to succeed on the merits. 5 The court may revisit this issue at a later stage of the proceedings if the interests of justice 6 | sorequire. If plaintiff later renews his request for counsel, he should provide a detailed 7 | explanation of the circumstances that he believes justify appointment of counsel. 8 9 IT IS SO ORDERED. y 14, —N prssann — Dated: _ January 14, 2020 11 UNIT#D STATES MAGISTRATE JUDGE 12 13 14 | No. 204. 15 16 17 18 19 20 21 22 23 24 25 26 27 28