Warner v. Cate et al

Filing 63

ORDER Denying 62 Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 06/05/2015. (Flores, E)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,

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Plaintiff,
v.

CASE NO. 1:12-CV-1146-LJO-MJS (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL (ECF No.
62)

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MATTHEW CATE, et al.,
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Defendants.

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On June 4, 2015, Plaintiff filed a motion to appoint counsel. (ECF No. 62.)

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There is no general constitutional right to appointed counsel in civil cases. Rand

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v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) partially overruled on other grounds,
154 F.3d 952, 954 n.1 (9th Cir. 1998); White v. McGinnis, 903 F.2d 699, 700 n.3 (9th Cir.

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1990). Nor is there a constitutional right to appointed counsel for § 1983 claims,
specifically. Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998). The Court may, in

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“exceptional circumstances,” appoint counsel for an indigent civil rights litigant. Palmer v.

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Valdez , 560 F.3d 965, 970 (9th Cir. 2009); Agyeman v. Corrections Corp. of America,

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390 F.3d 1101, 1103 (9th Cir. 2004). However, without a reasonable method of securing

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and compensating counsel, the Court will seek volunteer counsel only in the most

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serious and exceptional cases. To determine whether exceptional circumstances exist,

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the Court must evaluate both the likelihood of success on the merits and Plaintiff’s ability

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to articulate his claims in light of the complexity of the legal issues involved. Palmer, 560
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F.3d at 970. Neither of these factors is dispositive and both must be viewed together

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before reaching a decision on request of counsel under section 1915(d). Id., at 970(citing

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

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The burden of demonstrating exceptional circumstances is on the Plaintiff.
Palmer, 560 F.3d at 970 (plaintiff “has not made the requisite showing of exceptional
circumstances for the appointment of counsel”); accord, Alvarez v. Jacquez, 415 F.

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App'x 830, 831 (9th Cir. 2011) (plaintiff “failed to show exceptional circumstances”);
Simmons v. Hambly, 14 F. App'x 918, 919 (9th Cir. 2001) (same); Davis v. Yarborough,

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459 F. App'x 601, 602 (9th Cir. 2011) (plaintiff “did not show the ‘exceptional

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circumstances' required to appoint counsel under 28 U.S.C. § 1915(e)(1).”).

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Here, Plaintiff has not demonstrated the existence of exceptional circumstances.
At this early stage of the litigation, the Court cannot make a determination that Plaintiff is
likely to succeed on the merits. In addition, despite Plaintiff’s assertions to the contrary,

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his claims do not appear to be novel or unduly complex. The facts alleged to date

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appear straightforward and unlikely to involve extensive investigation and discovery.

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Moreover, the papers filed by Plaintiff in this case reflect an appreciation of the legal

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issues and standards and an ability to express them adequately in writing. The Court

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does not find that Plaintiff cannot adequately articulate his claims. Finally, it is not clear

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Plaintiff has exhausted diligent efforts to secure counsel. See e.g., Thornton v.

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Schwarzenegger, 2011 WL 90320, *3–4 (S.D.Cal. 2011) (cases cited).
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For the foregoing reasons, Plaintiff’s request for appointment of counsel (ECF No.
62) is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
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Dated:

June 5, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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