(PC)Daley v. Pelayo ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALCLIFF MORGAN DALEY, 1:20-cv-01129-GSA-PC 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 vs. (ECF No. 10.) 14 PELAYO, et al., 15 Defendants. 16 17 On May 27, 2021, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff 18 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 19 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 (1989). However, in certain exceptional circumstances the 22 Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 23 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 2 this early stage in the proceedings, the court cannot make a determination that plaintiff is likely 3 to succeed on the merits. Plaintiff’s complaint awaits the court’s screening required under 28 4 U.S.C. § 1915. Thus, to date the court has not found any cognizable claims in plaintiff’s 5 complaint for which to initiate service of process, and no other parties have yet appeared. The 6 legal issue in this case, whether defendants failed to protect plaintiff from harm, is not complex. 7 Moreover, based on a review of the record in this case, the court finds that plaintiff can adequately 8 articulate his claims. Therefore, plaintiff’s motion shall be denied, without prejudice to renewal 9 of the motion at a later stage of the proceedings. 10 Accordingly, for the foregoing reasons, plaintiff’s motion for the appointment of counsel 11 is HEREBY DENIED, without prejudice. 12 IT IS SO ORDERED. 13 14 Dated: September 16, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28