Gavaldon v. Cate et al

Filing 7

ORDER by Judge ARMSTRONG denying 2 Motion to Appoint Counsel (lrc, COURT STAFF) (Filed on 9/9/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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DAVID GAVALDON,

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Plaintiff,

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No. C 11-02887 SBA (PR)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
MATTHEW L. CATE, et al.,
Defendants.

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Plaintiff has filed a motion for appointment of counsel to represent him in this action.

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There is no constitutional right to counsel in a civil case unless an indigent litigant may lose

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his physical liberty if he loses the litigation. See Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25

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(1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in

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§ 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 (9th Cir. 1998)

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(en banc). The court may ask counsel to represent an indigent litigant under 28 U.S.C. § 1915 only

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in "exceptional circumstances," the determination of which requires an evaluation of both (1) the

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likelihood of success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se

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in light of the complexity of the legal issues involved. See id. at 1525; Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of

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these factors must be viewed together before reaching a decision on a request for counsel under

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§ 1915. See id.

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The Court is unable to assess at this time whether exceptional circumstances exist which

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would warrant seeking volunteer counsel to accept a pro bono appointment. The proceedings are at

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an early stage and it is premature for the Court to determine Plaintiff's likelihood of success on the

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merits. Moreover, Plaintiff has been able to articulate his claims adequately pro se in light of the

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complexity of the issues involved. See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th

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Cir. 2004). Accordingly, the request for appointment of counsel is DENIED without prejudice.

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This does not mean, however, that the Court will not consider appointment of counsel at a later

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juncture in the proceedings; that is, after Defendants have filed their dispositive motion such that the

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Court will be in a better position to consider the procedural and substantive matters at issue.

United States District Court
For the Northern District of California

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Therefore, Plaintiff may file a renewed motion for the appointment of counsel after Defendants'

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dispositive motion has been filed. If the Court decides that appointment of counsel is warranted at

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that time, it will seek volunteer counsel to agree to represent Plaintiff pro bono.

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This Order terminates Docket no. 2.

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IT IS SO ORDERED.

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DATED:

9/8/11
SAUNDRA BROWN ARMSTRONG
United States District Judge

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2

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
DAVID GAVALDON,
Case Number: CV11-02887 SBA

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Plaintiff,
CERTIFICATE OF SERVICE
v.
MATTHEW L. CATE et al,
Defendant.

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United States District Court
For the Northern District of California

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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 September 9, 2011, 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.

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David Gavaldon C15376
Pelican Bay State Prison
P.O. Box 7500
Crescent City, CA 95532

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Dated: September 9, 2011

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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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G:\PRO-SE\SBA\CR.11\Gavaldon2887.Atty.frm

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