(PC) Sierra v. Spearman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO SIERRA, Case No. 1:17-cv-01691-DAD-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF PRO BONO 13 v. COUNSEL WITHOUT PREJUDICE 14 J. CASTELLANOS, (ECF NO. 72) 15 Defendant. 16 17 Plaintiff Francisco Sierra is a state inmate proceeding pro se and in forma pauperis in this 18 civil rights action. On November 29, 2021, Plaintiff filed a motion for appointment of pro bono 19 counsel. (ECF No. 72). Generally, Plaintiff asks for appointment of counsel because he cannot 20 afford to hire counsel, his incarceration limits his ability to litigate, the issues in this case are 21 complex, and Plaintiff has limited knowledge of the law and limited access to legal materials. 22 (Id.) 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 24 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 25 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 26 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 27 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request 28 the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 1 Without a reasonable method of securing and compensating counsel, the Court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 4 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 6 The Court will not order appointment of pro bono counsel at this time. The Court has 7 reviewed the record in this case, and at this time the Court is unable to determine that Plaintiff is 8 likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can adequately 9 articulate his claims, as evidenced, in part, by his successful opposition to Defendant J. 10 Castellanos’ motion for summary judgment. (See ECF Nos. 58, 70). 11 Plaintiff is advised that he is not precluded from renewing his motion for appointment of 12 pro bono counsel at a later stage of the proceedings.1 13 Lastly, the Court notes that the District Judge granted summary judgment as to Defendant 14 T. Thompson; however, he still appears as an active party on the docket. (ECF No. 70). The Court 15 will direct the Clerk to terminate him from the docket. 16 For the foregoing reasons, IT IS ORDERED as follows: 17 1. Plaintiff’s motion for appointment of pro bono counsel (ECF No. 72) is DENIED 18 without prejudice. 19 2. Plaintiff shall not contact this Court about the status of any cases that he has pending 20 before other Judges. 21 \\\ 22 \\\ 23 \\\ \\\ 24 25 1 Additionally, Plaintiff notes his recently filed a case in the Sacramento Division, Case 26 No. 2:21-cv-2149-KJN, and asks this Court for “assistance” because this case should have been filed in the Fresno Division. Upon review of the docket, the Court advises Plaintiff that Case No. 27 2:21-cv-2149-KJN was transferred to the Fresno Division on November 29, 2021, being assigned Case No. 1:21-cv-1694-SAB. 28 1 3. The Clerk of Court is directed to terminate Defendant T. Thompson from the docket. 2 | ITIS ORDERED. | Dated: _November 30, 2021 [sf ey 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28