(PC) Serna v. Sullivan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORBERTO SERNA, 1:18-cv-01650-NONE-GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 SULLIVAN, et al., (Document #24) 15 Defendants. 16 17 On May 29, 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 asserts that he is indigent, uneducated in the law, illiterate in the English 2 language, and requires assistance in his case. While these circumstances are challenging for 3 Plaintiff in litigating this case, these circumstances do not make plaintiff’s case exceptional under 4 the law. At this early stage in the proceedings, the court cannot make a determination that 5 Plaintiff is likely to succeed on the merits. On April 13, 2020, after screening Plaintiff’s First 6 Amended Complaint, the court recommended that the First Amended Complaint be dismissed, for 7 failure to state a claim, because plaintiff did not complete the pages of the complaint. Thus, there 8 is no complaint on record in this case for which the Court has found any cognizable claim. 9 Plaintiff acknowledges that another inmate is assisting him, and he has been able to articulate his 10 claims and respond to court orders. Plaintiff’s claims for inadequate medical care, violation of 11 the Americans with Disabilities Act, and poor sanitation in the kitchen are not complex. Plaintiff 12 is advised that he is not precluded from renewing the motion for appointment of counsel at a later 13 stage of the proceedings. For the foregoing reasons, plaintiff’s motion for the appointment of 14 counsel is HEREBY DENIED, without prejudice. 15 IT IS SO ORDERED. 16 17 Dated: June 4, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28