(PC) Allen v. Bentacourt ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN ALLEN, 1:18-cv-01187-NONE-GSA-PC 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 vs. (ECF No. 29.) 14 V. BENTACOURT, et al., 15 Defendants. 16 17 On May 11, 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 (1989). However, in certain exceptional circumstances the 22 court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 23 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 asserts that he has a learning disability, dyslexia, and a low reading score of 0.7. 2 While these circumstances make litigation challenging, they do not make Plaintiff’s case 3 exceptional under the law. At this early stage of the proceedings, the court cannot make a 4 determination that Plaintiff is likely to succeed on the merits. Plaintiff’s First Amended 5 Complaint was dismissed on December 11, 2019, for failure to state a claim, with leave to amend 6 and to date, Plaintiff has not filed a Second Amended Complaint. Thus, there is no complaint on 7 record in this case for which the court has found a cognizable claim. Moreover, based on the 8 record in this case, it appears that Plaintiff is able to adequately articulate his claims. 9 Furthermore, Plaintiff’s conditions of confinement claim, alleging that his toilet overflowed onto 10 the floor of his cell, is not complex. Therefore, Plaintiff’s motion for appointment of counsel 11 shall be denied, without prejudice to renewal of the motion at a later stage of the proceedings. 12 Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel 13 is HEREBY DENIED, without prejudice. 14 IT IS SO ORDERED. 15 16 Dated: June 1, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28