(PC) Roman v. Eaton ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISIDRO ROMAN, 1:23-cv-00671-KES-SAB (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL AND DENYING MOTION FOR SUMMONS TO 14 PATRICT EASTON, et al, SERVE DEFENDANTS 15 Defendants. (ECF No. 20) 16 17 18 On May 17, 2024, Plaintiff filed a motion seeking the appointment of counsel and for 19 summons to serve defendants in this matter. Plaintiff does not have a constitutional right to 20 appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the 21 court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard 22 v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 23 1814, 1816 (1989). However, in certain exceptional circumstances the court may request the 24 voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 25 Without a reasonable method of securing and compensating counsel, the court will seek 26 volunteer counsel only in the most serious and exceptional cases. In determining whether 27 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of 28 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 1 complexity of the legal issues involved. Id. (internal quotation marks and citations omitted). 2 The test for exception circumstances requires the court to evaluate the plaintiff’s 3 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 4 light of the complexity of the legal issues involved. See Wilborn v. Escadeleron, 789 F.2d 1328, 5 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). In the present case, 6 the Court has screened Plaintiff’s second amended complaint and found that he has stated a claim 7 for retaliation against Defendant K. Jackson, but has failed to state any other cognizable claims. 8 (ECF No. 18.) The Court does not find the required exceptional circumstances. 9 Furthermore, even if it is assumed that plaintiff is not well versed in the law and that he 10 has made serious allegations which, if proved, would entitle him to relief, his case is not 11 exceptional. Plaintiff has adequately alleged a claim for retaliation in violation of the First 12 Amendment and review of the complaints filed in this action reflects an ability to express the 13 issue adequately. The legal issues present in this action are not complex. Circumstances 14 common to most prisoners, such as lack of legal education and limited law library access, do not 15 establish exception circumstances that would warrant a request for voluntary assistance of 16 counsel. This court is faced with similar cases almost daily. Further, at this early stage in the 17 proceedings, the court cannot make a determination that plaintiff is likely to succeed on the 18 merits, and based on a review of the record in this case, the court does not find that plaintiff 19 cannot adequately articulate his claims. Id. 20 Plaintiff seeks for summons to issue for service upon defendants in this action. Plaintiff’s 21 request for issuance of summonses is premature. Currently, pending before the district judge is a 22 findings and recommendations recommending dismissal of certain claims and defendant in this 23 matters. Once the district judge addresses the findings and recommendations an order will issue 24 regarding the issuance of summonses. 25 /// 26 /// 27 /// 28 /// 1 For the foregoing reasons, IT IS HEREBY ORDERED that: 2 1. Plaintiffs motion for the appointment of counsel is DENIED, without prejudice; and 3 2. Plaintiff's motion for issuance of summonses is DENIED as premature. 4 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ May 20, 2024 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28