(PC) Dominguez v. Padilla ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN DOMINGUEZ, 1:18-cv-01731-NONE-GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 F. PADILLA, et al., (Document #29) 15 Defendants. 16 17 On November 25, 2020, plaintiff filed a motion seeking the appointment of counsel. 18 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 19 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent 20 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the 21 Southern 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 section 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 of 27 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, plaintiff argues that he is unable to afford counsel, is scheduled for a 2 settlement conference and deposition, and needs assistance to bring witnesses to trial. These 3 conditions do not make Plaintiff’s case exceptional under Ninth Circuit law. At this stage of the 4 proceedings, the court cannot find that Plaintiff is likely to succeed on the merits. While the court 5 has found that “Plaintiff’s allegations in the First Amended Complaint state a cognizable claim 6 against defendant Padilla for retaliation in violation of the First Amendment, ” these findings are 7 not a determination that Plaintiff is likely to succeed on the merits. (ECF No. 15 at 8:6-7.) The 8 legal issue in this case -- whether defendant Padilla retaliated against plaintiff for using the prison 9 grievance system – is not complex. Moreover, based on a review of the record in this case, the 10 court finds that plaintiff can adequately articulate his claims. Thus, the court does not find the 11 required exceptional circumstances, and plaintiff’s motion for the appointment of counsel shall be 12 denied without prejudice to renewal of the motion at a later stage of the proceedings. 13 For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY 14 DENIED, without prejudice. 15 IT IS SO ORDERED. 16 17 Dated: December 1, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28