Cota v. Scribner et al

Filing 32

ORDER Denying 31 Motion for Appointment of Counsel Without Prejudice. Signed by Magistrate Judge Barbara Lynn Major on 5/26/2010. (All non-registered users served via U.S. Mail Service)(knh)

1 2 3 4 5 6 7 8 9 10 11 12 v. 13 L.E. SCRIBNER, et al., 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// /// /// /// /// /// /// /// /// /// /// /// DAVID J. COTA, CDCR #C-26012, Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. 09cv2507-BEN (BLM) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 31] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

09cv2507-BEN (BLM)

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On May 24, 2010, Plaintiff, a state prisoner proceeding pro se and in forma pauperis, moved this Court to appoint counsel. Doc. No. 31.

In support of his motion, Plaintiff states that he is "a poor person and does not possess sufficient means to employ the services of legal counsel." Id. Plaintiff further states that he is "relying upon

another prisoner to help litigate this action because [Plaintiff] is a layman, unskilled in law and does not possess the legal knowledge and skill which is imperative to litigate this action." following reasons, Plaintiff's motion is DENIED. The Constitution provides no right to appointment of counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25 (1981). However, under 28 U.S.C. § 1915(e)(1), courts are granted Id. For the

discretion to appoint counsel for indigent persons under "exceptional circumstances." Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional circumstances demands at least "an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims `in light of the complexity of the legal issues involved.'" Id.

(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Thus far, Plaintiff has drafted and submitted numerous pleadings and motions without the assistance of counsel. In addition to the

instant motion, he has submitted a complaint (Doc. No. 1), a motion to proceed in forma pauperis (Doc. No. 2), a previous motion to appoint counsel (Doc. No. 3), a motion to correct defendant's last name (Doc. No. 8), a motion for extension of time to file an opposition (Doc. No. 24), and a motion for leave to file excess pages (Doc. No. 28). ///

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From the Court's review of these documents, it is clear that Plaintiff is able to articulate the claims of his case. The Court

previously denied Plaintiff's request for counsel, see Doc. Nos. 3 & 5, and Plaintiff's current request does not provide any new facts

justifying such an extraordinary remedy.

Further, Plaintiff does not

demonstrate a likelihood of success on the merits such that his case should be classified as an "exceptional circumstance." Agyeman, 390

F.3d at 1103; see also Wilborn, 789 F.2d at 1331. Because Plaintiff has not alleged the requisite "exceptional circumstances" at this time, the Court therefore DENIES without prejudice Plaintiff's request for

appointment of counsel. IT IS SO ORDERED.

DATED:

May 26, 2010

BARBARA L. MAJOR United States Magistrate Judge

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09cv2507-BEN (BLM)