Tran v. Gore et al

Filing 179

ORDER Denying 176 Motion to Appoint Counsel. Signed by Magistrate Judge David H. Bartick on 11/21/2012. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HOANG MINH TRAN,

Civil No.

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Plaintiff,

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v.
WILLIAM D. GORE, Sheriff, et al.,

ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL
[ECF No. 176]

Defendants.

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10cv464-GPC (DHB)

Plaintiff Hoang Minh Tran, a former state prisoner, is proceeding pro se on a civil rights

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action filed under 28 U.S.C. § 1983. (ECF No. 1.) On November 16, 2012, Plaintiff filed a motion

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entitled “Motion for Entitlement of Americans Disability Act [ADA] Reasonable Accommodation

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Under Rehabilitation Act Title II Required Appointment of Counsel.” (ECF No. 176.) The Court

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construes this request as a Motion for Appointment of Counsel. This is Plaintiff’s seventh request

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for appointment of counsel. Plaintiff seeks appointment of counsel under the Americans with

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Disabilities Act (“ADA”) and the Rehabilitation Act because of his “numerous mental and physical

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disabilit[ies].” For the reasons set forth below, the Court hereby DENIES Plaintiff’s motion without

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prejudice.

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Plaintiff argues he is entitled to appointment of counsel as a reasonable accommodation

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under the ADA and Rehabilitation Act. However, Plaintiff has not shown that the reasonable

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accommodation he seeks (appointment of counsel) is available under the ADA and/or the

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Rehabilitation Act. In fact, Plaintiff does not cite any relevant authority, nor has the Court found

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any authority, to suggest that appointment of counsel in a civil lawsuit brought under 28 U.S.C. §
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10cv464-GPC (DHB)

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1983 provides reasonable accommodation to a disabled pro se litigant.
“[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust

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

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

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District Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54

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F.3d 564, 569 (9th Cir. 1995).

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Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to “request”

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that an attorney represent indigent civil litigants upon a showing of exceptional circumstances. See

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823

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(9th Cir. 1989). “A finding of exceptional circumstances requires an evaluation of both the

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‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved.’ Neither of these issues is dispositive and both

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must be viewed together before reaching a decision.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986)).

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In the absence of counsel, however, the procedures employed by the federal courts are highly

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protective of a pro se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro

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se complaint to less stringent standard) (per curiam). Where a plaintiff appears pro se in a civil

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rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the

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doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The rule of

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liberal construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d

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1258, 1261 (9th Cir. 1992).

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In this case, Plaintiff has failed to demonstrate extraordinary circumstances. Plaintiff has not

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shown that he is entitled to appointment of counsel under the ADA or Rehabilitation Act, nor has he

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shown how his alleged medical conditions prevent him from sufficiently prosecuting his lawsuit.

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Rather, Plaintiff’s numerous filings demonstrate he has a good grasp of his case and the legal issues

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involved. In addition, the Court does not find the issues in this case so complex to warrant

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appointment of counsel at this time.

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Accordingly, the Court hereby DENIES Plaintiff’s Motion for Appointment of Counsel
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10cv464-GPC (DHB)

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without prejudice. (ECF No. 176.)

IT IS SO ORDERED.
DATED: November 21, 2012

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DAVID H. BARTICK
United States Magistrate Judge

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10cv464-GPC (DHB)