(PC) Thomas v. Reyna ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT QUINCY THOMAS, 1:19-cv-01217-DAD-GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 L. REYNA, et al., (Document #27) 15 Defendants. 16 17 On April 19, 2021, 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. 1 In the present case, the court does not find the required exceptional circumstances. Plaintiff 2 seeks appointment of counsel because he lacks adequate access to the law library due to Covid-19 3 restrictions. This is not an exceptional circumstance under the law. While the court has found that “Plaintiff states a cognizable claim in the Complaint against Defendants Huerta, Reyna, Podsakoff, 4 Vellido, and Centeno for use of excessive force against Plaintiff in violation of the Eighth 5 Amendment,” this finding is not a determination that Plaintiff is likely to succeed on the merits. 6 (ECF No. 13 at 7:1-3.) Plaintiff’s excessive force claims are not complex, and based on a review 7 of the record in this case, Plaintiff can adequately articulate his claims and respond to court orders. 8 Thus, the court does not find the required exceptional circumstances, and plaintiff’s motion shall 9 be denied without prejudice to renewal of the motion 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: April 22, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28