Jones v. Ryan et al

Filing 179

ORDER denying 178 Motion to Appoint Counsel. Signed by Magistrate Judge Jan M. Adler on 5/6/11. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RODNEY WAYNE JONES,
CDCR #D-55894,

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Plaintiff,
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v.
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STUART J. RYAN, et al.,
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Defendants.
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Case No. 07-CV-1019-JMA
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[Doc. 178]

On April 8, 2011, Plaintiff Rodney Wayne Jones filed a motion for appointment of

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counsel. [Doc. 178.] The Court previously denied Plaintiff’s requests for counsel on

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December 15, 2009 and February 23, 2010. [Docs. 120, 128.] Plaintiff presently claims

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that he requires counsel because his case has survived all previous motions filed by

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Defendants to dismiss the case, and due to the legal and factual complexity of

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preparing his case for trial. Pl.’s Motion at 2-3.

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“[T]here is no absolute right to counsel in civil proceedings.” Hedges v.

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Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). “Title 28

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U.S.C. § 1915(e)(1) permits the district court, in its discretion, to ‘request an attorney to

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represent any person unable to afford counsel.’” Solis v. County of Los Angeles, 514

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F.3d 946, 958 (9th Cir. 2008) (quoting 28 U.S.C. § 1915(e)(1)). Such discretion may be

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exercised only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015,

07cv1019

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1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 824 (9th Cir. 1989). “To

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show exceptional circumstances, the litigant must demonstrate the likelihood of success

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and the complexity of legal issues involved.” Id. (citation omitted). Neither of these

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factors is dispositive, and both must be considered. Terrell, 935 F.2d at 1017.

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Having considered both factors, the Court does not find that exceptional

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circumstances are present that would warrant the appointment of counsel in this case.

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As the Court previously found, Plaintiff has a sufficient grasp of his case, including the

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legal issues involved, and has been able to adequately articulate the factual basis of his

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claims. See Dec. 15, 2009 Order [Doc. 120]. Further, the Court’s order granting in part

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and denying in part Defendants’ motion for partial summary judgment does not equate

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to a showing by Plaintiff that he has a likelihood of succeeding on the merits of his

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remaining claims. The Court therefore DENIES without prejudice Plaintiff’s motion for

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appointment of counsel.

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While the presence of exceptional circumstances warranting the appointment of

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counsel does not exist in this case, the Court has attempted to locate volunteer counsel

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to represent Plaintiff for purposes of settlement and/or trial through referrals to the San

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Diego Volunteer Lawyer Program and to the Lawyer Representatives of the Southern

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District of California. Although the Court has been unable to find volunteer counsel for

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Plaintiff to date, it continues its efforts to do so.

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IT IS SO ORDERED.
DATED: May 6, 2011

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Jan M. Adler
U.S. Magistrate Judge

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07cv1019