Luna v. Loll ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RENE LUNA, JR., Case No. 1:21-cv-01291-AWI-BAM 12 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT OF 13 v. COUNSEL 14 OFFICER LOLL, et al., (Doc. 33) 15 Defendants. 16 17 Plaintiff Rene Luna, Jr., is a former county jail inmate proceeding pro se and in forma 18 pauperis in this civil rights action under 42 U.S.C. § 1983. On September 28, 2022, Plaintiff filed 19 a notice informing the Court of his release from the Bob Wiley Detention Facility and updating 20 his address. (Doc. 33.) Plaintiff’s notice also included a request for appointment of legal counsel 21 to represent him in this case. (Id.) 22 Plaintiff does not have a constitutional right to appointed counsel in this action. Rand v. 23 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 24 n.1 (9th Cir. 1998). The court cannot require an attorney to represent plaintiff pursuant to 28 25 U.S.C. §1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 26 (1989). However, in certain exceptional circumstances the court may request the voluntary 27 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a 28 reasonable method of securing and compensating counsel, the court will seek volunteer counsel 1 only in the most serious and exceptional cases. In determining whether “exceptional 2 circumstances exist, a district court must evaluate both the likelihood of success on the merits 3 [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 4 legal issues involved.” Id. (internal quotation marks and citations omitted). 5 In the present case, the court does not find the required exceptional circumstances. Even if 6 it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations 7 which, if proved, would entitle him to relief, his case is not exceptional. His indigent pro se 8 status is not sufficient to make this case exceptional. This court is faced with similar cases almost 9 daily from indigent, pro se plaintiffs asserting civil rights claims. Further, at this stage in the 10 proceedings, there is no indication from the record that Plaintiff is unable to articulate his claims 11 pro se. Plaintiff has stated a cognizable claim for relief and this action proceeds on Plaintiff’s 12 second amended complaint against Officers Loll and Gomez for excessive force in violation of 13 the Fourth Amendment. 14 Accordingly, Plaintiff’s motion for the appointment of counsel is HEREBY DENIED 15 without prejudice. 16 IT IS SO ORDERED. 17 18 Dated: September 29, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28