(PC) Sekona v. Perez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, 1:19-cv-00400-NONE-GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 R. PEREZ, et al., (Document# 20) 15 Defendants. 16 17 18 On August 31, 2020, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff 19 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 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 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 27 of 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 early stage in the proceedings, the court cannot make a determination that Plaintiff is likely to 3 succeed on the merits. Plaintiff’s Complaint was dismissed on May 13, 2020 for failure to state a claim, and his First Amended Complaint, filed on August 31, 2020, awaits screening by the court. 4 (ECF Nos. 15, 21.) To date, the court has not found any cognizable claims in Plaintiff’s 5 complaints for which to initiate service of process, and no other parties have yet appeared. 6 Plaintiff’s claims for failure to protect and retaliation are not complex, and based on a review of 7 the record in this case, the court finds that Plaintiff can adequately articulate his claims. 8 Therefore, Plaintiff’s motion shall be denied without prejudice to renewal of the motion at a later 9 stage of the proceedings. 10 For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY 11 DENIED, without prejudice. 12 IT IS SO ORDERED. 13 14 Dated: September 3, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28