(PC) Brookins v. Dwivedi ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY L. BROOKINS, 1:18-cv-00645-DAD-GSA-PC 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 vs. (ECF No. 88.) 14 RAJENDRA DWIVEDI, 15 Defendant. 16 17 18 On July 16, 2021, 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 20 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent Plaintiff 21 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 22 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the 23 Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 24 F.3d at 1525. 25 Without a reasonable method of securing and compensating counsel, the Court will seek 26 volunteer counsel only in the most serious and exceptional cases. In determining whether 27 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 28 1 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 2 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 3 In the present case, the court does not find the required exceptional circumstances. On 4 June 10, 2021, the court entered findings and recommendations, recommending that defendant 5 Dwivedi’s motion to dismiss this case as barred by the statute of limitations be granted. (ECF 6 No. 83.) Based on the findings and recommendations, the court has determined that Plaintiff is 7 unlikely to succeed on the merits and has recommended that the case be dismissed. The statute 8 of limitations issue is not complex, and a review of the record shows that Plaintiff is responsive, 9 adequately communicates, and is able to articulate his claims. Therefore, Plaintiff's motion shall 10 be denied, without prejudice to renewal of the motion at a later stage of the proceedings. 11 Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel 12 is HEREBY DENIED, without prejudice. 13 IT IS SO ORDERED. 14 15 Dated: August 13, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28