(PC) Petillo v. Galliger ( 2021 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 ISAIAH J. PETILLO, 1:18-cv-00217-NONE-GSA-PC 13 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 14 vs. (ECF No. 59.) 15 GALLIGER, et al., 16 Defendants. 17 18 19 On December 6, 2021, Plaintiff filed a motion seeking the appointment of counsel. 20 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 21 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent 22 Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the 23 Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 24 circumstances the Court may request the voluntary assistance of counsel pursuant to section 25 1915(e)(1). Rand, 113 F.3d at 1525. 26 Without a reasonable method of securing and compensating counsel, the Court will seek 27 volunteer counsel only in the most serious and exceptional cases. In determining whether 28 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 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. 4 Defendants have filed a motion for summary judgment to dismiss this case based on Plaintiff’s 5 failure to exhaust administrative remedies, which makes it unlikely that Plaintiff will succeed on 6 the merits. Plaintiff’s claims for excessive force, failure to protect, and retaliation are not 7 complex, and a review of the record in this case shows that Plaintiff is responsive, adequately 8 communicates, and is able to articulate his claims. 9 Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel 10 is HEREBY DENIED, without prejudice. 11 IT IS SO ORDERED. 12 13 Dated: December 10, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28