(PC) Heim v. Doe ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER HEIM, 1:20-cv-00391-AWI-GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 JANE DOE, et al., (Document# 23) 15 Defendants. 16 17 On May 6, 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 Aexceptional 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. 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 third amended complaint, filed ten days ago on May 3, 2021, 4 awaits screening by the court. (Doc. 22.) Until the third amended complaint is screened and the 5 court finds that plaintiff states cognizable claims, service of process shall not be initiated upon the 6 defendants. Plaintiff’s failure-to-protect claim is not complex. Moreover, based on a review of 7 the record in this case, the court finds that plaintiff can adequately articulate his claims. See id. 8 Plaintiff argues that he cannot afford counsel and his resources are limited because he is 9 incarcerated. While these conditions make litigation challenging, they do not amount to 10 exceptional circumstances under the law. Therefore, plaintiff’s motion shall be denied without 11 prejudice to renewal of the motion at a later stage of the proceedings. 12 For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY 13 DENIED, without prejudice. 14 IT IS SO ORDERED. 15 16 Dated: May 13, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28