(PC)Marsala v. Diaz ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH AUGUST MARSALA, Case No. 1:22-cv-00843-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. (ECF No. 3) 14 DIAZ, et al., 15 Defendants. 16 17 Plaintiff Joseph August Marsala (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed July 11, 20 2022. (ECF No. 3.) Plaintiff requests appointment of counsel because he cannot afford counsel, 21 he works during available library hours at his institution, he can only keep track of the rancid 22 dinner trays given to himself, he has been unable to find help after writing to other lawyers, he 23 cannot cross examine or collect evidence, he has been harassed, ridiculed, and retaliated against 24 when interacting with staff, and without a lawyer his rations will continue to be rancid. (Id.) 25 Plaintiff is informed that he does not have a constitutional right to appointed counsel in 26 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other 27 grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 28 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 1 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 2 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 3 1525. 4 Without a reasonable method of securing and compensating counsel, the Court will seek 5 volunteer counsel only in the most serious and exceptional cases. In determining whether 6 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 7 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 8 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 9 The Court has considered Plaintiff’s request, but does not find the required exceptional 10 circumstances. Even if it is assumed that Plaintiff has made serious allegations which, if proved, 11 would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed 12 almost daily by prisoners who must obtain discovery and conduct legal research with limited 13 access to a prison law library. These plaintiffs also must litigate their cases without the assistance 14 of counsel. 15 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 16 Plaintiff is likely to succeed on the merits. Plaintiff’s complaint has not yet been screened, and 17 therefore the Court cannot evaluate the likelihood of success on the merits. Finally, based on a 18 review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate 19 his claims. 20 Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 3), is HEREBY DENIED, 21 without prejudice. 22 IT IS SO ORDERED. 23 24 Dated: July 19, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28