(PC) Serna v. Sullivan

Opinion

NORBERTO SERNA, 1:18-cv-01650-NONE-GSA (PC)

Plaintiff, ORDER DENYING MOTION FOR v. APPOINTMENT OF COUNSEL

SULLIVAN, et al., (Document #24)

Defendants.

On May 29, 2020, plaintiff filed a motion seeking the appointment of counsel. Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). Plaintiff asserts that he is indigent, uneducated in the law, illiterate in the English language, and requires assistance in his case. While these circumstances are challenging for Plaintiff in litigating this case, these circumstances do not make plaintiff’s case exceptional under the law. At this early stage in the proceedings, the court cannot make a determination that Plaintiff is likely to succeed on the merits. On April 13, 2020, after screening Plaintiff’s First Amended Complaint, the court recommended that the First Amended Complaint be dismissed, for failure to state a claim, because plaintiff did not complete the pages of the complaint. Thus, there is no complaint on record in this case for which the Court has found any cognizable claim. Plaintiff acknowledges that another inmate is assisting him, and he has been able to articulate his claims and respond to court orders. Plaintiff’s claims for inadequate medical care, violation of the Americans with Disabilities Act, and poor sanitation in the kitchen are not complex. Plaintiff is advised that he is not precluded from renewing the motion for appointment of counsel at a later stage of the proceedings. For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY DENIED, without prejudice. IT IS SO ORDERED.

Dated: June 4, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE