Treglia v. Director of California Department of Corrections et al

Filing 88

ORDER signed by Magistrate Judge Kendall J. Newman on 9/28/11 GRANTING 87 Motion to Appoint Counsel. Clerk is directed to locate forthwith an attorney admitted to practice in this court who is willing to accept the appointment. (cc ADRP)(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL TREGLIA,

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Plaintiff,

No. 2: 09-cv-0352 MCE KJN P

vs.
DIRECTOR OF CALIFORNIA
DEPARTMENT OF CORRECTIONS,
et al.,
Defendants.

ORDER
/

Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, in

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this civil rights action filed pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s

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motion for appointment of counsel filed September 26, 2011.

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“In proceedings in forma pauperis, the district court ‘may request an attorney to

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represent any person unable to afford counsel.’ 28 U.S.C. § 1915(e)(1). The decision to appoint

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such counsel is within ‘the sound discretion of the trial court and is granted only in exceptional

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circumstances.’ Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the

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exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the

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likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to

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articulate his claims ‘in light of the complexity of the legal issues involved.’ Wilborn v.
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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954

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(9th Cir. 1983)).” Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir.

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2004). “Neither of these factors is dispositive and both must be viewed together before reaching

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a decision on request of counsel under section 1915(d).” Wilborn, supra, 789 F.2d at 1331 (fn.

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omitted); see also, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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Plaintiff meets both criteria listed above. Plaintiff alleges that defendants violated

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his right to due process when they validated him as a gang associate and that defendants

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retaliated against him for his legal activities. Plaintiff has a chance of success as to both claims.

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In light of the complexity of both claims, appointment of counsel is warranted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for appointment of counsel (Dkt. No. 87) is granted; and

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2. The Clerk of Court is directed to locate forthwith an attorney admitted to

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practice in this court who is willing to accept the appointment.

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DATED: September 28, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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treg352.app

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