Johnson v. Gains et al

Filing 76

ORDER denying without prejudice plaintiff's 69 Motion for Appointment of Counsel. Signed by Magistrate Judge Louisa S Porter on 5/24/11. (All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANTHONY WAYNE JOHNSON, JR.,

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09cv1312-LAB (POR)

Plaintiff,

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Civil No.

ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL

v.
M. GAINS et al.,
Defendants.

[Doc. 69]

Plaintiff, currently incarcerated at Salinas Valley State Prison, is proceeding pro se and in

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forma pauperis with a civil rights Complaint filed pursuant to 42 U.S.C. § 1983. On April 14, 2011,

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Plaintiff filed a Motion for Appointment of Counsel and Notice of Motion for Summary Judgment.

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(ECF No. 69.) For the reasons set forth below, the Court hereby DENIES without prejudice

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Plaintiff’s Motion for Appointment of Counsel. The Court will address Plaintiff’s Motion for

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Summary Judgment in a separate order.

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Generally, “there is no absolute right to counsel in civil proceedings.” Hedges v. Resolution

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Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Thus, federal

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courts do not have the authority “to make coercive appointments of counsel.” Mallard v. United

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States District Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S.

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Currency, 54 F.3d 564, 569 (9th Cir. 1995). Districts courts have discretion, however, pursuant to

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28 U.S.C. § 1915(e)(1), to “request” that an attorney represent indigent civil litigants upon a

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showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). “A finding of exceptional
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09cv1312

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circumstances requires an evaluation of both the ‘likelihood of success on the merits and the ability

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of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.’

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Neither of these issues is dispositive and both must be viewed together before reaching a decision.’”

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Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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Plaintiff requests the appointment of counsel because there is a strong likelihood of success

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on the merits. (ECF No. 69 at 1, 3.) Specifically, Plaintiff argues Defendants Rascon, Palomera,

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Garcia and Carpio admitted to using O.C. pepper spray on Plaintiff with malicious and sadistic

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intent. (Id.) Plaintiff also claims there were approximately 200 inmates who witnessed the attack

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and would be able to provide testimony on his behalf. (Id. at 1.) However, Plaintiff argues he will

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be unable to complete discovery without the assistance of counsel because prison regulations

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prohibit him from corresponding with other inmates. Finally, Plaintiff contends the assistance of

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counsel will be necessary to present medical expert testimony and cross-examine witnesses at trial.

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The Court finds Plaintiff’s request for appointment of counsel premature at this time. The

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Court discussed alternative methods for completing discovery with Plaintiff and Defendants’

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counsel at the May 6, 2011 Case Management Conference. Moreover, Plaintiff has sufficiently

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represented himself to date. Plaintiff’s Motion for Summary Judgment demonstrates an

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understanding of the facts of this case and the legal issues involved. (See ECF No. 66.) While this

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motion is pending, the Court finds the interests of justice do not require the appointment of counsel.

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Therefore, Plaintiff’s Motion for Appointment of Counsel is DENIED without prejudice.

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IT IS SO ORDERED.
DATED: May 24, 2011

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LOUISA S PORTER
United States Magistrate Judge

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cc

The Honorable Larry A. Burns
All parties

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09cv1312