Cleveland v. Janssen Pharmaceuticals

Filing 92

ORDER signed by Magistrate Judge Allison Claire on 4/8/19 DENYING Plaintiff's motion to appoint counsel (ECF No. 89 ). The court will not consider any further motions from plaintiff to appoint counsel. (Becknal, R)

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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,
Defendant.

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The court is in receipt of plaintiff’s fourth motion to appoint counsel. ECF No. 89.

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Counsel was previously appointed for plaintiff for the purposes of settlement. ECF No. 45.

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

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that motion was recently granted by District Judge Morrison C. England, Jr. ECF No. 60.

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Plaintiff is now in pro se, and the case is accordingly referred back to the undersigned. E.D. Cal.

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Local Rule 302(c)(21).
I.

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Motion

Plaintiff requests that the court appoint counsel, asserting that the case has substantial

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merit, plaintiff’s ability to litigate is hampered by the fact that he is incarcerated, and that the case

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is complex. ECF No. 89 at 1-2.

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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

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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 imprisonment and lack of resources to afford counsel are not a reason to appoint

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counsel. “Circumstances common to most prisoners, such as lack of legal education and limited

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law library access, do not establish exceptional circumstances that would warrant a request for

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voluntary assistance of counsel.” Kent v. U.C. Davis Med. Ctr., No. 215CV1924WBSACP, 2016

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WL 4208572, at *1 (E.D. Cal. Aug. 10, 2016).

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III.

Conclusion

Plaintiff’s motion to appoint counsel (ECF No. 89) is DENIED. The court will not

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consider any further motions from plaintiff to appoint counsel. IT IS SO ORDERED.

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DATED: April 8, 2019

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