(PC) Borhan v. McKesson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PAYMAN BORHAN, 1:21-cv-00218-GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT 13 v. PREJUDICE 14 J. McKESSON, (Document# 8) 15 Defendant. 16 17 18 19 I. BACKGROUND 20 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights 21 action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on 22 February 22, 2021. (ECF No. 1.) On May 27, 2021, plaintiff filed a motion seeking the 23 appointment of counsel. (ECF No. 8.) 24 II. MOTION FOR APPOINTMENT OF COUNSEL 25 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 26 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent 27 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the 28 Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 1 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 2 section § 1915(e)(1). Rand, 113 F.3d at 1525. 3 Without a reasonable method of securing and compensating counsel, the court will seek 4 volunteer counsel only in the most serious and exceptional cases. In determining whether 5 exceptional circumstances exist, the district court must evaluate both the “likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity 6 of the legal issues involved.” Id. (internal quotation marks and citations omitted) 7 In the present case, the court does not find the required exceptional circumstances. At this 8 early stage in the proceedings, the court cannot make a determination that plaintiff is likely to 9 succeed on the merits. Plaintiff filed the Complaint on February 22, 2021, less than three months 10 ago, and the Complaint awaits the court’s screening required under 28 U.S.C. 1915. Thus, to date 11 the Court has not found any cognizable claims in plaintiff’s Complaint for which to initiate service 12 of process, and no other parties have yet appeared. Plaintiff’s claims for adverse conditions of 13 confinement are not complex, and based on a review of the record in this case, the court finds that 14 plaintiff can adequately articulate his claims. Therefore, plaintiff’s motion shall be denied without 15 prejudice to renewal of the motion at a later stage of the proceedings. 16 For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY 17 DENIED, without prejudice. 18 IT IS SO ORDERED. 19 20 Dated: June 3, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28