(PC) Dosio v. Odeluga ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELMER DOSIO, 1:19-cv-00675-DAD-GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 ODELUGA, et al., (Document #25) 15 Defendants. 16 17 On May 26, 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.” Id. (internal quotation marks and citations omitted) 1 In the present case, the court does not find the required exceptional circumstances. At this 2 stage of the proceedings, the court cannot make a determination that plaintiff is likely to succeed 3 on the merits. Defendant Fernandez has not yet filed an answer or other responsive pleading. 4 Based on the record in this case, the court finds that plaintiff can adequately articulate his claims 5 and respond to court orders. Further, the legal issue in this case, whether defendant Fernandez 6 denied plaintiff adequate medical care in violation of the Eighth Amendment, does not appear 7 complex. Therefore, plaintiff’s motion shall be denied without prejudice to renewal of the motion 8 at a later stage of the proceedings. 9 For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY 10 DENIED, without prejudice. 11 IT IS SO ORDERED. 12 13 Dated: June 3, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28