Nemcik v. Mills et al

Filing 129

ORDER DENYING 126 MOTION REQUESTING COUNSEL. Signed by Judge Beth Labson Freeman on 4/24/2017. (blflc4, COURT STAFF) (Filed on 4/24/2017)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 TANYA NEMCIK, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 16-cv-00322-BLF ORDER DENYING MOTION TO REQUEST COUNSEL v. STACEY STEVENS, et al., [Re: ECF 126] Defendants. 12 13 On April 21, 2017, Plaintiff Tanya Nemcik (“Nemcik”) filed a request for counsel. Mot., 14 ECF 126. Nemcik claims that she has struggled to understand and apply the District Court’s rules. 15 Id. at 2. She further avers that this case is exceptional and merits a request for counsel by this 16 Court. Id. at 2-3. 17 A district court may exercise its discretion to secure counsel for an indigent civil litigant 18 under 28 U.S.C. § 1915(d) only under “exceptional circumstances,” so grants of such a motion are 19 relatively rare. United States v. 30.64 Acres of Land, More or Less, Situated in Klickitat Cty., 20 State of Wash., 795 F.2d 796, 799-800 (9th Cir. 1986) (citing Aldabe v. Aldabe, 616 F.2d 1089, 21 1093 (9th Cir.1980)). A finding of exceptional circumstances requires an evaluation of both “the 22 likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se 23 in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th 24 Cir. 1983). “Neither of these factors is dispositive and both must be viewed together before 25 reaching a decision on request of counsel under section 1915(d).” Wilborn v. Escalderon, 789 26 F.2d 1328, 1331 (9th Cir. 1986). 27 28 Although Nemcik claims that she has concern that she can apply the court’s rules correctly, these are difficulties which any litigant would have in proceeding pro se. As such, they do not 1 indicate exceptional factors. See Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990) 2 (finding that factors normally encountered by pro se litigants do not constitute exceptional 3 circumstances). Further, the Court finds that Nemcik has performed competently in litigating her 4 case so far so exceptional circumstances requiring counsel are not evident. The request for 5 counsel is therefore DENIED. If the Court determines at a later time in the proceedings that 6 securing counsel to represent Nemcik is warranted, it will consider a request for counsel sua 7 sponte, and seek volunteer counsel to agree to represent Nemcik pro bono. 8 9 IT IS SO ORDERED. 10 United States District Court Northern District of California 11 12 13 Dated: April 24, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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