(PC) Chavez v. Doe 1 ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GILBERTO CHAVEZ, 1:18-cv-01534 AWI-GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 J. DOE #1, et al., (Document #36.) 15 Defendants. 16 17 On October 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 F.3d 19 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff pursuant 20 to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 21 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances 22 the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 23 113 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 complexity 28 of the legal issues involved.” Id. (internal quotation marks and citations omitted). 1 In the present case, plaintiff argues that he is unable to afford counsel. This alone does not 2 make plaintiff’s case exceptional. While the court has found that “Plaintiff states cognizable claims 3 in the Second Amended Complaint against defendant Celina Salinas (Kitchen Supervisor) for 4 acting against him with deliberate indifference in violation of the Eighth Amendment,” this finding 5 is not a determination that plaintiff is likely to succeed on the merits, and at this juncture the court 6 cannot find that plaintiff is likely to succeed on the merits. (ECF No. 27 at 12-13.) Plaintiff’s 7 deliberate indifference claims against defendant Salinas do not appear complex, and based on a 8 review of the record in this case, the court finds that plaintiff can adequately articulate his claims. 9 Thus, the court does not find the required exceptional circumstances, and plaintiff’s motion shall 10 be denied without prejudice to renewal of the motion at a later stage of the proceedings. 11 For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY 12 DENIED, without prejudice. 13 IT IS SO ORDERED. 14 15 Dated: October 29, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28