Walton v. Ryan et al

Filing 36

ORDER denying without prejudice 28 Plaintiff's Motion to Appoint Counsel. Signed by Magistrate Judge Lawrence O Anderson on 8/15/11.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Geary W. Walton,
Plaintiff,

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vs.

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Charles L. Ryan,
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Defendant.
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No. CV-10-2206-PHX-FJM (LOA)
ORDER

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This matter arises on Plaintiff’s Motion for Appointment of Counsel. (Doc. 28)
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For the reasons set forth below, the Court will deny the motion to appoint counsel.
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APPOINTMENT OF COUNSEL
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In a civil case, there is no constitutional right to appointment of counsel.
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Johnson v. U.S. Department of Treasury, 939 F.2d 820, 824 (9th Cir. 1991). However,
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“[t]he court may request an attorney to represent any person unable to afford counsel.” 28
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U.S.C. § 1915(d). The statute gives the trial court broad discretion to determine whether
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appointment of counsel is warranted, but the Ninth Circuit has limited the exercise of that
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power to exceptional circumstances. Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980);
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United States ex rel. Gardner v. Madden, 352 F.2d 792 (9th Cir. 1965). Other circuits agree.
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See e.g., Lovado v. Keohane, 992 F.2d 601, 605-05 (6th Cir. 1993); Fowler v. Jones, 899
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F.2d 1088, 1096 (11th Cir. 1990); Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986);

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Cook v.Bounds, 518 F.2d 779, 780 (4th Cir. 1975).
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In determining whether to appoint counsel, the district court should consider

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the likelihood of success on the claim’s merits and the ability of plaintiff to articulate his

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claims in view of their complexity. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.

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1990). Other factors include: (1) Plaintiff’s education, literacy, prior work experience, and

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prior litigation experience; (2) whether Plaintiff is a prisoner and whether any restraints are

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placed on the prisoner to present her case; (3) the complexity of the underlying legal issues;

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(4) whether the case entails a need for factual investigation; (5) Plaintiff’s ability to carry out

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such investigation; (6) the likelihood that a claim will involve substantial discovery and

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compliance with complex discovery rules; and (7) whether credibility determinations are

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involved that may require the experience of one trained in the presentation of evidence and

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cross-examination. Tabron v. Grace, 6 F.3d 147 (3rd Cir. 1993). However, the court must

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temper these considerations with the practical restraints imposed by the small number of

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attorneys willing to represent indigent parties without compensation and the court’s inability

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to require counsel to undertake such representation. Id. at 157.

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After considering all the relevant factors - including that Plaintiff’s ability to

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express himself in writing, the uncomplicated nature of the claims, and the fact that it is too

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early in the litigation for the Court to determine the likelihood of success on the merits - the

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Court concludes that exceptional circumstances are not present and appointment of counsel

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is not warranted.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for Appointment of Counsel, doc. 28,

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is DENIED without prejudice.
DATED this 15th day of August, 2011.

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