(PC) Rayford v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EUGENE RAYFORD, 1:19-cv-00225 GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 SHERMAN, et al., (Document# 15) 15 Defendants. 16 17 On May 19, 2020, plaintiff filed a motion seeking the appointment of counsel. Plaintiff 18 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 19 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff 20 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 21 District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 22 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 23 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 27 of 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 Plaintiff argues that he lacks sufficient access to the law library because of the Corona-19 2 virus pandemic, and he requires the assistance of an attorney to litigate this case. These 3 conditions make it more difficult for plaintiff to proceed with this case, but these conditions do 4 not make plaintiff’s case exceptional under the law. 5 At this early stage in the proceedings, the court cannot make a determination that plaintiff 6 is likely to succeed on the merits. Plaintiff’s First Amended Complaint was dismissed on April 7 29, 2020, for failure to state a claim, with leave to amend. To date, plaintiff has not filed a 8 Second Amended Complaint. Thus, there is no complaint on record in this case for which the 9 court has found cognizable claims. It is too early for service of process, and no other parties have 10 yet appeared. Moreover, the court finds that plaintiff can adequately articulate his claims and 11 respond to the court’s orders. Plaintiff is advised that he is not precluded from renewing the motion for appointment of counsel at a later stage of the proceedings. 12 For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff’s motion for 13 appointment of counsel, filed on May 19, 2020, is DENIED, without prejudice. 14 15 IT IS SO ORDERED. 16 Dated: May 21, 2020 /s/ Gary S. Austin 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28