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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joseph Gerald Eldridge,
Plaintiff,

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ORDER

v.

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No. CV-14-01325-PHX-DGC (ESW)

JD Schroeder,

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Defendant.

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Pending before the Court is Plaintiff’s Motion for Appointment of Counsel (Doc.

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40). Plaintiff is incarcerated in the Arizona State Prison Complex-Lewis and has filed a

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civil rights First Amended Complaint (Doc. 21) pursuant to 42 U.S.C. § 1983. Plaintiff

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requests the appointment of counsel for the following reasons: (1) the Plaintiff is trying

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to serve the defendant and is unable to locate him; (2) the Plaintiff is unable to afford

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counsel, (3) the Plaintiff needs to depose witnesses to perpetuate their testimony; (4) the

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Plaintiff has limited library access and education; and (5) the Plaintiff is unfamiliar with

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the Federal Rules of Civil Procedure.

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There is no constitutional right to the appointment of counsel in a civil case. See

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Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of

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Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). “However, a court

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may under ‘exceptional circumstances’ appoint counsel for indigent civil litigants

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pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

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2009) (quoting Agyeman v. Coors. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)).

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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his

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claims pro se in light of the complexity of the legal issues involved.’” Palmer, 560 F.3d

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at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). See also Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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dispositive and instead must be viewed together.” Palmer, 560 F.3d at 970 (citing

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

“Neither of these considerations is

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Having considered both elements, Plaintiff has not shown that exceptional

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circumstances are present that would require the appointment of counsel in this case.

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Plaintiff has not demonstrated a likelihood of success on the merits at this early stage of

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the case, nor has he shown that he is experiencing difficulty in litigating this case because

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of the complexity of the issues involved. Plaintiff’s filings with the Court, as well as the

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instant motion, indicate that Plaintiff is capable of navigating his proceedings and

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presenting arguments to the Court. See Wilborn, 789 F.2d at 1331 (“If all that was

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required to establish successfully the complexity of the relevant issues was a

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demonstration of the need for development of further facts, practically all cases would

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involve complex legal issues.”). Plaintiff is in no different position that many pro se

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prisoner litigants. Having failed to show that exceptional circumstances are present,

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Plaintiff’s request for appointment of counsel will be denied. Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for the Appointment of Counsel (Doc.
40) is denied.
Dated this 2nd day of December, 2015.

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Honorable Eileen S. Willett
United States Magistrate Judge

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