Johnson v. Gains et al

Filing 43

ORDER denying plaintiff's 29 Motion to Intervene; denying without prejudice plaintiff's 29 Motion for Appointment of Counsel. Signed by Magistrate Judge Louisa S Porter on 8/25/10. (All non-registered users served via U.S. Mail Service)(kaj)

Johnson v. Gains et al

Doc. 43

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 Plaintiff, currently incarcerated at Salinas Valley State Prison, is proceeding pro se and in forma pauperis with a civil rights Complaint filed pursuant to 42 U.S.C. § 1983. On April 19, 2010, Plaintiff filed a "Motion of Intervention and Request for Appointment of Counsel." [Doc. 29.] Plaintiff argues that the U.S. Treasury Department must intervene in this case, because "due to the large sum of money that he seeks, monitoring of Defendants' finances is necessary so that Defendants will not try to hide their assets." Id. at 1. In addition, Plaintiff requests the appointment of counsel. Id. For the reasons set forth below, the Court DENIES Plaintiff's motion as to both (1) intervention and (2) appointment of counsel. I. INTERVENTION Federal Rule of Civil Procedure 24 provides, in relevant part, that: On timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. -1M. GAINS et al., Defendants. v. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ANTHONY WAYNE JOHNSON, JR., Plaintiff, Civil No. 09cv1312-LAB (POR)

ORDER DENYING PLAINTIFF'S MOTION TO INTERVENE AND PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL (Doc. No. 29.)

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Fed. R. Civ. P. 24(a)(2). Thus, a motion to intervene must be brought by the party "claim[ing] an interest relating to the property or transaction." Id. Accordingly, even if the U.S. Treasury Department has such an interest, the Treasury Department must bring its own motion, and affirmatively claim this interest in the action, in order to intervene as a matter of right. Id. However, in this case, the Treasury Department does not seek to intervene. Rather, Plaintiff seeks to compel intervention by filing a motion on behalf of the Treasury Department. As Rule 24 does not empower a court to compel the intervention of a party who has not requested to intervene in the action, Plaintiff's Motion to Intervene is hereby DENIED. II. APPOINTMENT OF COUNSEL Generally, "there 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. 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)). Plaintiff requests the appointment of counsel because "he is very likely to succeed on the merits" [Doc. 29 at 1], but fails to demonstrate the requisite exceptional circumstances under Terrell v. Brewer. 935 F.2d at 1017. Specifically, upon a review of the pleadings, the Court finds that Plaintiff has adequately prosecuted his lawsuit. The Third Amended Complaint survived the initial screening provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and Plaintiff served the Complaint on all named Defendants. Furthermore, Plaintiff filed an Opposition to Defendants' Motion to -2-

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Dismiss in advance of the deadline, addressing each of Defendants' arguments under clearly delineated headings. [Doc. 42.] At present, without further court order, no further briefing is required of Plaintiff. In light of the foregoing, the Court DENIES without prejudice Plaintiff's Motion for Appointment of Counsel.

IT IS SO ORDERED.

DATED: August 25, 2010

LOUISA S PORTER United States Magistrate Judge

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The Honorable Larry A. Burns All parties

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