Eldridge #147718 v. Schroeder

Filing 48

ORDER: Plaintiff's Motion for the Appointment of Counsel (Doc. 40 ) is denied. Signed by Magistrate Judge Eileen S Willett on 12/02/2015. (REK)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joseph Gerald Eldridge, Plaintiff, 10 11 ORDER v. 12 No. CV-14-01325-PHX-DGC (ESW) JD Schroeder, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s Motion for Appointment of Counsel (Doc. 16 40). Plaintiff is incarcerated in the Arizona State Prison Complex-Lewis and has filed a 17 civil rights First Amended Complaint (Doc. 21) pursuant to 42 U.S.C. § 1983. Plaintiff 18 requests the appointment of counsel for the following reasons: (1) the Plaintiff is trying 19 to serve the defendant and is unable to locate him; (2) the Plaintiff is unable to afford 20 counsel, (3) the Plaintiff needs to depose witnesses to perpetuate their testimony; (4) the 21 Plaintiff has limited library access and education; and (5) the Plaintiff is unfamiliar with 22 the Federal Rules of Civil Procedure. 23 There is no constitutional right to the appointment of counsel in a civil case. See 24 Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of 25 Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). “However, a court 26 may under ‘exceptional circumstances’ appoint counsel for indigent civil litigants 27 pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 28 2009) (quoting Agyeman v. Coors. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)). 1 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 2 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his 3 claims pro se in light of the complexity of the legal issues involved.’” Palmer, 560 F.3d 4 at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). See also Terrell v. 5 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 6 dispositive and instead must be viewed together.” Palmer, 560 F.3d at 970 (citing 7 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). “Neither of these considerations is 8 Having considered both elements, Plaintiff has not shown that exceptional 9 circumstances are present that would require the appointment of counsel in this case. 10 Plaintiff has not demonstrated a likelihood of success on the merits at this early stage of 11 the case, nor has he shown that he is experiencing difficulty in litigating this case because 12 of the complexity of the issues involved. Plaintiff’s filings with the Court, as well as the 13 instant motion, indicate that Plaintiff is capable of navigating his proceedings and 14 presenting arguments to the Court. See Wilborn, 789 F.2d at 1331 (“If all that was 15 required to establish successfully the complexity of the relevant issues was a 16 demonstration of the need for development of further facts, practically all cases would 17 involve complex legal issues.”). Plaintiff is in no different position that many pro se 18 prisoner litigants. Having failed to show that exceptional circumstances are present, 19 Plaintiff’s request for appointment of counsel will be denied. Accordingly, 20 21 22 IT IS ORDERED that Plaintiff’s Motion for the Appointment of Counsel (Doc. 40) is denied. Dated this 2nd day of December, 2015. 23 24 25 Honorable Eileen S. Willett United States Magistrate Judge 26 27 28 -2-

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