Fosselman v. Tilton et al

Filing 38

ORDER denying w/o prejudice Plaintiff's 34 Motion to Appoint Counsel. Court finds that Pla has failed to plead facts sufficient to the exceptional circumstances required for appointment of counsel pursuant to 28 USC 1915(e)(1). Signed by Magistrate Judge William McCurine, Jr on 4/27/2009. (All non-registered users served via U.S. Mail Service).(jah) (jrl).

1 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 JEROME FOSSELMAN, vs. JAMES TILTON, et al., Defendant. Plaintiff, CASE NO. 07cv1676-IEG (WMc)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL PURSUANT TO 28 U.S.C. § 1915(e)(1) [Doc. No. 34]

Plaintiff, proceeding pro se and in forma pauperis ("IFP") with a civil rights Complaint [Doc. No. 1] filed pursuant to 42 U.S.C. § 1983, and currently incarcerated at Folsom State Prison, has submitted a motion in which he requests that the Court appoint counsel for him pursuant to 28 U.S.C. § 1915(e)(1) [Doc. No. 34]. "[T]here is no absolute right to counsel in civil proceedings." Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Thus, federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to "request" that an attorney represent indigent civil litigants upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v.

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County of King, 883 F.2d 819, 823 (9th Cir. 1989). "A finding of exceptional circumstances requires an evaluation of both the `likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision.'" Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Here, it appears that Plaintiff has a sufficient grasp of his case, the legal issues involved, and is able to adequately articulate the basis of his claims. In fact, Plaintiff's pro se pleading has survived the initial screening provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Conclusion and Order Accordingly, under the circumstances of this case, the Court finds that Plaintiff has failed to plead facts sufficient to show the "exceptional circumstances" required for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) and therefore DENIES without prejudice Plaintiff's Motion for Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1) [Doc. No. 34].
IT IS SO ORDERED. DATED: April 27, 2009

Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court

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