(PC) Edwards v. Smith ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES A. EDWARDS, 1:20-cv-01822-GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 D. SMITH, (Document# 6) 15 Defendant. 16 17 On May 3, 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 Plaintiff seeks counsel because he does not know how to file a motion without assistance. 2 This does not make plaintiff’s case exceptional under the law. At this early stage in the 3 proceedings, the court cannot make a determination that plaintiff is likely to succeed on the 4 merits. Plaintiff’s complaint awaits the court’s screening required under 28 U.S.C. § 1915. Thus, 5 to date the court has not found any cognizable claims in plaintiff’s complaint for which to initiate 6 service of process, and no other parties have yet appeared. The legal issue in this case, whether 7 defendants used excessive force against plaintiff, is not complex. Moreover, based on a review of 8 the record in this case, the court finds that plaintiff can adequately articulate his claims. 9 Therefore, plaintiff’s motion shall be denied, without prejudice to renewal of the motion at 10 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: May 6, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28