(PC) Nieto v. Gordon ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN M. NIETO, Case No. 1:20-cv-00291-BAK-GSA (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 13 v. 14 YORK, (ECF No. 47) 15 Defendant. 16 17 On January 28, 2022, Plaintiff filed a motion seeking the appointment of counsel. (ECF 18 No. 47.) Plaintiff argues that he needs counsel “for civil argument etc.,” and requests 19 instructions on “how to file final cop[ies] and or powerful words” against the previously assigned 20 magistrate judge. Plaintiff does not have a constitutional right to appointed counsel in this 21 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an 22 attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Ct. for 23 the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). The Court may request the voluntary assistance 24 of counsel under section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a reasonable 25 method of securing and compensating counsel, the Court will seek volunteer counsel only in the 26 most serious and exceptional cases. In determining whether exceptional circumstances exist, the 27 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 of the legal issues involved. Id. 28 1 Plaintiff fails to demonstrate good cause or exceptional circumstances which would 2 warrant appointment of counsel. Even assuming that Plaintiff is not well-versed in the law, and 3 that he has made serious allegations, which, if proved, would entitle him to relief, his case is not 4 exceptional. This Court is faced with similar cases almost daily. At this stage in the proceedings 5 the Court cannot make a determination that Plaintiff is likely to succeed on the merits. 6 Moreover, based on a review of the record, the Court finds that Plaintiff is able to articulate his 7 claims adequately. Id. Plaintiff’s first amended complaint has survived screening and the 8 dispositive motion deadline. Therefore, under these circumstances, Plaintiff has failed to 9 demonstrate the need for counsel to prosecute this action effectively. 10 The instant motion is Plaintiff’s third request for counsel. (ECF Nos. 27, 41, 47.) The 11 Court has found each time that Plaintiff failed to demonstrate exceptional circumstances. (ECF 12 Nos. 31, 42.) The first two motions were denied, and the third motion is denied herein. Should 13 Plaintiff file a fourth request for the appointment of counsel, Plaintiff must demonstrate a change 14 of circumstances that would make this case sufficiently serious and exceptional to warrant the 15 Court’s assistance in obtaining voluntary counsel. 16 To the extent that Plaintiff requests “instructions on how to file final cop[ies] and or [sic] 17 powerful words . . . against” the assigned magistrate judge, the Court is unable to ascertain what 18 kind of documents, exactly, Plaintiff seeks to file. Moreover, Plaintiff cites to no rule of 19 procedure or statute that authorizes the relief he seeks. Therefore, this request for instructions is 20 denied. 21 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for the appointment of 22 counsel, (ECF No. 47), is DENIED. 23 24 IT IS SO ORDERED. 25 Dated: February 7, 2022 /s/ Gary S. Austin 26 UNITED STATES MAGISTRATE JUDGE 27 28