(PC) Popovich v. Igbinosa

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA FRANK JOSEPH POPOVICH, 1:19-cv-01758 GSA (PC) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL NGOZI IGBINOSA, et al., (Document# 8 & 9) 15 Defendants.

17 On December 30, 2019 and December 31, 2019, plaintiff filed identical motions 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).

22 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.

24 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).

1 In the present case, the court does not find the required exceptional circumstances.

2 Plaintiff’s indigency does not make his case exceptional. At this early stage in the proceedings, the court cannot make a determination that plaintiff is likely to succeed on the merits. Plaintiff filed the Complaint on December 14, 2019, less than a month ago, and the Complaint awaits the court’s screening required under 28 U.S.C. § 1915. Thus, to date the court has not found any cognizable claims in plaintiff’s Complaint for which to initiate service of process, and no other parties have yet appeared. Plaintiff’s medical and retaliation claims are not complex. Moreover, based on a review of the record in this case, the court finds that plaintiff can adequately articulate his claims. Therefore, plaintiff’s motions shall be denied without prejudice to renewal of the motion at a later stage of the proceedings.

11 For the foregoing reasons, plaintiff’s motions for the appointment of counsel are HEREBY DENIED, without prejudice.

IT IS SO ORDERED.

15 Dated: January 2, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE