(PC) Merced v. Covello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN AUTILANO MERCED Jr., Case No. 2:21-cv-01405-WBS-JDP (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR AN EXTENSION OF TIME AND 13 v. DENYING HIS MOTION TO APPOINT COUNSEL 14 PATRICK COVELLO, et al., ECF No. 37 15 Defendants. 16 17 Plaintiff has filed a motion seeking the appointment of counsel and an extension of time to 18 file an opposition to defendant’s motion to dismiss. ECF No. 37. Good cause appearing, 19 plaintiff’s request for an extension of time is granted. His request for the appointment of counsel, 20 however, is denied. 21 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 22 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an 23 attorney to represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 24 298 (1989). The court can request the voluntary assistance of counsel. See 28 U.S.C. 25 § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 26 counsel”); Rand, 113 F.3d at 1525. But without a means to compensate counsel, the court will 27 seek volunteer counsel only in exceptional circumstances. In determining whether such 28 circumstances exist, “the district court must evaluate both the likelihood of success on the merits 1 | [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 2 | legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 3 Plaintiff asks that counsel be appointed so that he has a fair opportunity to litigate this 4 | case. ECF No. 37 at 1. The court cannot conclude that exceptional circumstances requiring the 5 || appointment of counsel are present here. The allegations in the complaint are not exceptionally 6 | complicated, and plaintiff has not demonstrated that he is likely to succeed on the merits. For 7 | these reasons, plaintiffs motion to appoint counsel, ECF No. 37, is denied without prejudice. 8 Accordingly, it is hereby ORDERED that: 9 1. Plaintiff's motion for an extension of time, ECF No. 37, is granted. 10 2. Plaintiff is granted thirty days from the date of this order to file an opposition to 11 | defendant’s motion to dismiss, ECF No. 35. 12 3. Plaintiff's motion to appoint counsel, ECF No. 37, is denied without prejudice. 13 4 IT IS SO ORDERED. 15 ( 1 ow — Dated: _ March 31, 2023 q-—— 16 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28