(PC) Arista v. Feleppa

Opinion

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 ALFRED ARISTA, 1:22-cv-00240-ADA-GSA-PC

12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. (ECF No. 20.) 14 FELEPPA,

15 Defendant. 16 17 18 19 Alfred Arista (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. On February 25, 2022, Plaintiff filed 21 the Complaint commencing this action. (ECF No. 1.) 22 On July 27, 2023, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff 23 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 24 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent Plaintiff 25 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 26 District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 27 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 28 section 1915(e)(1). Rand, 113 F.3d at 1525. 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 4 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the court does not find the required exceptional circumstances. 7 Plaintiff’s Complaint awaits the Court’s requisite screening. At this early stage of the 8 proceedings, the Court cannot determine if Plaintiff is likely to succeed on the merits of the case. 9 Plaintiff seeks appointment of counsel because he cannot afford to retain counsel and his 10 imprisonment will greatly limit his ability to litigate. These are not exceptional circumstances 11 under the law. Plaintiff’s claims that he was subjected to extreme temperatures and lack of 12 airflow in his cell while the air conditioner was not working are not complex, and based on a 13 review of the record in this case, Plaintiff can adequately articulate his claims and respond to 14 court orders. Thus, the court does not find the required exceptional circumstances, and Plaintiff’s 15 motion shall be denied without prejudice to renewal of the motion at a later stage of the 16 proceedings. 17 Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel 18 is HEREBY DENIED, without prejudice. 19 IT IS SO ORDERED. 20

21 Dated: August 2, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22

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