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)
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-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?