Lewis v. City of Fresno et al

Filing 20

ORDER DENYING 18 Plaintiff's Motion for Appointment of Counsel, signed by Magistrate Judge Sheila K. Oberto on 1/10/2013. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT LEWIS,

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CASE NO. 1:11-cv-01415-AWI-SKO
Plaintiff,

ORDER DENYING PLAINTIFF'S
MOTION FOR APPOINTMENT OF
COUNSEL

v.

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OFFICER CATTON,

(Doc. 18)

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Defendant.
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I. INTRODUCTION

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Plaintiff Robert Lewis ("Plaintiff") is proceeding pro se and in forma pauperis with an action

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filed pursuant to 42 U.S.C. § 1983. The Court has determined that Plaintiff has stated a cognizable

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Section 1983 claim for alleged excessive force. The U.S. Marshal has been directed to serve the

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complaint, and Defendant Catton has not yet made an appearance in the action. On December 7,

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2012, Plaintiff filed a motion for court appointment of counsel. (Doc. 18.)

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II. DISCUSSION

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Plaintiff has requested the appointment of counsel in this case. (Docs. 8, 9, 21.) "[T]here

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is no absolute right to counsel in civil proceedings." Hedges v. Resolution Trust Corp. (In re

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Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Thus, federal courts do not have the

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authority "to make coercive appointments of counsel." Mallard v. U.S. District Court for Southern

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District of Iowa, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency,

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54 F.3d 564, 569 (9th Cir. 1995).

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A civil litigant may be entitled to appointed counsel if he demonstrates both indigence and

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exceptional circumstances. When determining whether exceptional circumstances exist, a court

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must consider the likelihood of success on the merits as well as the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez,

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560 F.3d 965, 970 (9th Cir. 2009), cert. denied, 130 S. Ct. 1282 (2010). Neither of these

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considerations is dispositive and instead must be viewed together. Id.; Wilborn v. Escalderon,

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

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In the present case, the Court does not find the required exceptional circumstances. Even if

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it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations

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which, if proven, would entitle him to relief, his case is not exceptional. The Court is faced with

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similar cases almost daily. Further, at this early stage in the proceedings, the Court cannot make a

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determination that Plaintiff is likely to succeed on the merits, and based on a review of the record

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in this case, the Court finds that Plaintiff is able to adequately articulate his claims.

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.

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III. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion to Appoint Counsel is
DENIED.

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IT IS SO ORDERED.

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Dated:
ie14hj

January 10, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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