Dorian Davis v. Flores et al

Filing 13

ORDER DENYING 12 Motion to Appoint Counsel, signed by District Judge Jeffrey T. Miller on 2/13/2009. (Sondheim, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. PR O C E D U R A L HISTORY On August 15, 2008, Plaintiff, an inmate currently incarcerated at Kern Valley State Prison located in Delano, California and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a) to commence a civil action; instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. /// -10 8 cv 1 1 9 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

D O R IA N DAVIS aka W A LI AL-TAQI, C D C R #K-78041, P l a i n t if f , vs . E .G . FLORES; J. CASTRO; T. B ILLIN G S; A. HEDGPETH; R . MARTA, Defendants.

Civil No.

08-1197 JTM (JMA)

O R D E R DENYING PLAINTIFF'S M O T I O N TO APPOINT COUNSEL [Doc. No. 12]

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The Court granted Plaintiff's Motion to Proceed IFP on August 21, 2008 [Doc. No. 4]. On November 26, 2008, this matter was reassigned to District Judge Jeffrey Miller for all further proceedings [Doc. No. 8]. The Court conducted a sua sponte screening of Plaintiff's Complaint and directed the United States Marshal to effect service of Plaintiff's Complaint on December 29, 2008. Plaintiff filed a "Motion to Appoint Counsel" on February 2, 2009 [Doc. No. 12]. II. MOTION TO APPOINT COUNSEL "There is no constitutional right to appointed counsel in a § 1983 action." Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); see also Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) ("[T]here is no absolute right to counsel in civil proceedings.") (citation omitted). Thus, federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to "request" that an attorney represent indigent civil litigants upon a showing of "exceptional circumstances." See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525. "A finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims `in light of the complexity of the legal issues involved.'" Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The Court agrees that any pro se litigant "would be better served with the assistance of counsel." Rand, 113 F.3d at 1525 (citing Wilborn, 789 F.2d at 1331). However, so long as a pro se litigant, like Plaintiff in this case, is able to "articulate his claims against the relative complexity of the matter," the "exceptional circumstances" which might require the appointment of counsel do not exist. Id. (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner "may well have fared better-particularly in the realms of discovery and -2-

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the securing of expert testimony.").

The Court finds that neither the interests of justice nor

exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. For these reasons, the Court finds Plaintiff's Motion for Appointment of Counsel must be denied. III. CO N C L U SIO N AND ORDER Good cause appearing, IT IS HEREBY ORDERED that: Plaintiff's Motion to Appoint Counsel [Doc. No. 12] is DENIED without prejudice.

DATED: February 13, 2009 Hon. Jeffrey T. Miller United States District Judge

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