Cleveland v. Janssen Pharmaceuticals

Filing 63

ORDER signed by Magistrate Judge Allison Claire on 11/7/18 DENYING 58 Motion to Appoint Counsel. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOMINGO L. CLEVELAND, SR.,

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No. 2:16-cv-02308-MCE-AC

Plaintiff,
v.

ORDER

JANSSEN PHARMACEUTICALS,

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Defendant.

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The court is in receipt of plaintiff’s motion to appoint counsel. ECF No. 58. Counsel was

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previously appointed for the limited purpose of a settlement conference. ECF No. 45. Counsel

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moved to withdraw following the failure of settlement negotiations, ECF No. 54, and that motion

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was recently granted by District Judge Morrison C. England, Jr. ECF No. 60. Plaintiff is now in

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pro se, and the case is accordingly referred back to the undersigned. E.D. Cal. Local Rule

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302(c)(21).

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I.

Motion

Plaintiff requests that the court appoint counsel, asserting that withdrawn counsel

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indicated to him that other counsel may be interested in taking this case. ECF No. 58 at 2.

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Plaintiff asserts that he is indigent and cannot afford counsel. Id.

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II.

Analysis

There is no right to counsel in civil cases; “the appointment of counsel in a civil case is, as
is the privilege of proceeding in forma pauperis, a matter within the discretion of the district
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court. It is a privilege and not a right.” U. S. ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th

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Cir. 1965). In exceptional circumstances, the court may request an attorney to voluntarily to

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represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir. 1990). When

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determining whether “exceptional circumstances” exist, the court must consider the likelihood of

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success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of

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the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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Having considered the relevant factors, the court finds there are no exceptional
circumstances in this case, and that appointment of counsel is not warranted at this time.

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Plaintiff’s lack of resources to afford counsel is not a reason to appoint counsel. “Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel.” Kent v. U.C. Davis Med. Ctr., No. 215CV1924WBSACP, 2016 WL 4208572, at *1

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(E.D. Cal. Aug. 10, 2016). Even assuming prior counsel represented to plaintiff that other

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counsel might be willing to take his case, such representation does not create an obligation on the

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part of the court to find counsel for plaintiff.

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III.

Conclusion

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Plaintiff’s motion to appoint counsel (ECF No. 58) is DENIED.

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IT IS SO ORDERED.

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DATED: November 7, 2018

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