(PC) Dosio v. Odeluga ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELMER DOSIO, 1:19-cv-00675-DAD-GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 N.ODELUGA, et al, (Document# 12) 15 Defendants. 16 17 On September 16, 2020, plaintiff filed a motion seeking the appointment of counsel. 18 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 19 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent 20 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the 21 Southern 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 The court does not find the required exceptional circumstances. At this early stage in the 2 proceedings, the court cannot make a determination that plaintiff is likely to succeed on the 3 merits. Plaintiff’s First Amended Complaint was dismissed on September 23, 2020, for failure to 4 state a claim, with leave to amend. To date, Plaintiff has not filed an amended complaint. Thus, 5 there is no complaint on record in this case for which the court has found cognizable claims. It is 6 too early for service of process, and no other parties have yet appeared. Moreover, Plaintiff’s 7 medical claims are not complex, and the court finds that Plaintiff can adequately articulate his 8 claims and respond to the court’s orders. Plaintiff is advised that he is not precluded from 9 renewing 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 IT IS SO ORDERED. 13 14 Dated: September 24, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28