(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 13 v. APPOINTMENT OF COUNSEL 14 V. BENTACOURT, et al., (Document #33) 15 Defendant. 16 17 On July 20, 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 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. At this 2 early stage in the proceedings, the court cannot make a determination that Plaintiff is likely to 3 succeed on the merits. Plaintiff’s First Amended Complaint was dismissed on December 11, 4 2019 for failure to state a claim, with leave to amend. To date, Plaintiff has not filed a Second Amended Complaint. Thus, there is no complaint on record in this case for which the court has 5 found cognizable claims. It is too early for service of process, and no other parties have yet 6 appeared. Moreover, a review of the record shows that Plaintiff can adequately articulate his 7 claims and respond to the court’s orders. Plaintiff’s conditions of confinement claim under the 8 Eighth Amendment is not complex. Plaintiff is advised that he is not precluded from renewing 9 the motion for appointment of counsel at a later stage of the proceedings. 10 For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY 11 DENIED, without prejudice. 12 13 IT IS SO ORDERED. 14 Dated: July 23, 2020 /s/ Gary S. Austin 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28