(PC) Arista v. Feleppa ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALFRED ARISTA, 1:22-cv-00240-GSA-PC 12 Plaintiff, ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL 13 v. (ECF Nos. 11, 12.) 14 FELEPPA, 15 Defendant. 16 17 18 19 Alfred Arista (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. On February 25, 2022, Plaintiff filed 21 the Complaint commencing this action. (ECF No. 1.) 22 On August 15, 2022 and September 1, 2022, Plaintiff filed motions seeking the 23 appointment of counsel. Plaintiff does not have a constitutional right to appointed counsel in this 24 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an 25 attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States 26 District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). 27 However, in certain exceptional circumstances the court may request the voluntary assistance of 28 counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 4 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the court does not find the required exceptional circumstances. 7 Plaintiff’s Complaint awaits the Court’s requisite screening. At this early stage of the 8 proceedings, the Court cannot determine if Plaintiff is likely to succeed on the merits of the case. 9 Plaintiff seeks appointment of counsel because he cannot afford to retain counsel and his 10 imprisonment will greatly limit his ability to litigate. These are not an exceptional circumstances 11 under the law. Plaintiff’s claims that he was subjected to adverse conditions of confinement are 12 not complex, and based on a review of the record in this case, Plaintiff can adequately articulate 13 his claims and respond to court orders. Thus, the court does not find the required exceptional 14 circumstances, and Plaintiff’s motions shall be denied without prejudice to renewal of the motion 15 at a later stage of the proceedings. 16 Accordingly, for the foregoing reasons, Plaintiff’s motions for the appointment of counsel 17 are HEREBY DENIED, without prejudice. 18 IT IS SO ORDERED. 19 20 Dated: September 22, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28