(PS) Auten v. County of Calaveras ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD AUTEN, Case No. 1:20-cv-00329-JLT-EPG 12 Plaintiff, 13 v. ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 14 COUNTY OF CALAVERAS, (ECF No. 57) 15 Defendant. 16 17 Plaintiff Donald Auten, proceeds pro se and in forma pauperis in this action filed under 18 the Americans with Disabilities Act (ADA). On October 20, 2022, Plaintiff filed a motion 19 requesting the appointment of counsel, stating that he has “made a diligent effort to obtain the assistance of counsel and employ counsel” and has “attended Pro Se Help Programs” and has 20 worked diligently in litigating this case. (ECF No. 57, p. 1). 21 Pursuant to 28 U.S.C. § 1915(e)(1), the Court may request that an attorney represent an 22 indigent party in a civil case. However, the appointment of counsel is not a constitutional right, 23 and the Court cannot require an attorney to represent a party. See Rand v. Rowland, 113 F.3d 24 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 (9th Cir. 1998); 25 Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 26 (1989). Without a reasonable method of securing and compensating counsel, the Court will seek 27 the voluntary assistance of counsel only in the most serious and exceptional circumstances. 28 1 | Rand, 113 F.3d at 1525. In determining whether exceptional circumstances exist, “a district court 2 | must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to 3 | articulate his claims pro se in light of the complexity of the legal issues involved.” Jd. (internal 4 || quotation marks and citations omitted). 5 The Court will not order appointment of pro bono counsel at this time. The Court has 6 reviewed the record in this case, and at this time, the Court is unable to make a determination that 7 | Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can g | adequately articulate his claims, as indicated by his partial success in opposing Defendant’s 9 motion to dismiss. (ECF No. 41). Lastly, while Plaintiff states that he has been unsuccessful in 19 | obtaining counsel and has engaged in pro se litigation training, Plaintiff offers no developed 11 | argument for why the Court should appoint counsel in this case. 2 For the foregoing reasons, IT IS ORDERED that Plaintiffs motion for appointment of B counsel (ECF No. 57) is denied. M4 IT IS SO ORDERED. 15 | Dated: _ October 24, 2022 hey UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28