Burnett v. Frayne et al

Filing 103

ORDER DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL 92 Case Management Statement filed by Timothy R. Frayne, Suzanne Blick, Catherine R. Bow, Ryan Adler. Signed by Judge ARMSTRONG on 3/5/13. (lrc, COURT STAFF) (Filed on 3/5/2013)

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 OMARR L. BURNETT, Case No: C 09-4693 SBA (pr) 6 Plaintiff, 7 vs. ORDER DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL 8 DEPUTY FRAYNE, et al., 9 Defendants. 10 11 12 Pro se plaintiff Omarr L. Burnett brings the instant action under 42 U.S.C. § 1983 13 alleging that his constitutional rights were violated while he was housed at San Mateo 14 County Jail (SMCJ) and San Quentin State Prison (SQSP). Plaintiff has since been 15 released from custody. 16 Plaintiff requests that the Court appointment counsel to represent him in this action. 17 Dkt. 92 at 2-3. “[I]t is well-established that there is generally no constitutional right to 18 counsel in civil cases.” United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996). 19 Nonetheless, under 28 U.S.C. § 1915(e)(1), the Court has the discretion to appoint counsel 20 to “any person unable to afford counsel.” The discretionary appointment of counsel 21 typically is reserved for cases involving “exceptional circumstances.” Terrell v. Brewer, 22 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an 23 evaluation of both ‘the likelihood of success on the merits and the ability of the petitioner to 24 articulate his claims pro se in light of the complexity of the legal issues involved.’ Neither 25 of these factors is dispositive and both must be viewed together before reaching a 26 decision.” Id. 27 Plaintiff contends that the appointment of counsel is warranted on the grounds that 28 the legal issues involved in this case are beyond the scope of his expertise. However, the 1 same can be said in virtually every case brought by a pro se, non-attorney litigant. That 2 aside, the Court has reviewed Plaintiff’s various submissions in this action and finds that 3 Plaintiff is capable of clearly articulating the substance of his claims, relative to the 4 complexity involved. As to Plaintiff’s likelihood of success, the Court has not been 5 presented with sufficient information to make such an assessment. Finally, the Court notes 6 that there is no indication that Plaintiff has made any effort to retain counsel on his own. 7 See Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) (“§ 1915(d) … requires that 8 indigent plaintiffs make a reasonably diligent effort to secure counsel as a prerequisite to 9 the court’s appointing counsel for them”).1 In sum, the Court is not persuaded that 10 exceptional circumstances exist to justify the appointment of counsel in this action. 11 Accordingly, 12 13 14 15 IT IS HEREBY ORDERED THAT Plaintiff’s request for appointment of counsel is DENIED. IT IS SO ORDERED. Dated: March 5, 2013 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 16 17 18 19 20 21 22 23 24 25 1 As noted, the Court may appoint an attorney to represent a person “unable to afford counsel.” 28 U.S.C. § 1915(e)(1). At the time Plaintiff filed this action, he was 27 incarcerated, and obviously unable to maintain employment. However, Plaintiff has been out of custody at least since April 2, 2012. Plaintiff has made no showing that he presently 28 is unable to afford counsel. 26 -2- 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 OMARR L. BURNETT, 5 6 7 8 Plaintiff, v. FRAYNE et al, Defendant. / 9 10 Case Number: CV09-04693 SBA 11 CERTIFICATE OF SERVICE 12 13 14 15 16 17 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 5, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 18 19 21 O’Marr L. Burnett 9949 Lawlor Street Oakland, CA 94605 22 Dated: March 5, 2013 20 23 Richard W. Wieking, Clerk By: Lisa Clark, Deputy Clerk 24 25 26 27 28 -3- 1 N:\K….\Odd….\09-4693 - Burnett - Order Denying Appointment of Counsel.docx 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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