(PC) Cruz v. Gonzalez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO TRUJILLO CRUZ, 1:20-cv-01720-NONE-GSA-PC 12 ORDER DENYING MOTION FOR Plaintiff, APPOINTMENT OF COUNSEL 13 (ECF No. 5.) vs. 14 L. GONZALEZ, et al., 15 Defendants. 16 17 18 19 On January 25, 2021, Plaintiff filed a motion seeking the appointment of counsel. 20 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 21 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent 22 Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the 23 Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 24 circumstances the Court may request the voluntary assistance of counsel pursuant to section 25 1915(e)(1). Rand, 113 F.3d at 1525. 26 Without a reasonable method of securing and compensating counsel, the Court will seek 27 volunteer counsel only in the most serious and exceptional cases. In determining whether 28 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 1 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 2 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 3 In the present case, the court does not find the required exceptional circumstances. On 4 January 14, 2021, the Court entered findings and recommendations, recommending that this case 5 be dismissed based on Plaintiff’s accrual of “three strikes” under 28 U.S.C 1915(g). (ECF No. 6 3.) Based on the findings and recommendations, the Court has determined that Plaintiff is 7 unlikely to succeed on the merits. Plaintiff’s retaliation, due process, and failure to protect claims 8 are not are not complex, and a review of the record shows that Plaintiff is responsive, adequately 9 communicates, and is able to articulate his claims. Therefore, Plaintiff’s motion shall be denied, 10 without prejudice to renewal of the motion at a later stage of the proceedings. 11 Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel 12 is HEREBY DENIED, without prejudice. 13 IT IS SO ORDERED. 14 15 Dated: February 4, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28