Scofield v. Ball et al

Filing 37

ORDER Denying Plaintiff's 31 Motion for Appointment Counsel without Prejudice. Signed by Magistrate Judge William McCurine, Jr on 4/17/2012. (All non-registered users served via U.S. Mail Service)(knb)(jrd)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT SCOFIELD, CASE NO. 11cv378-BEN (WMc) Plaintiff, 12 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL vs. 13 14 BALL, et al., (ECF No. 31) Defendants. 15 16 17 On February 28, 2012, Plaintiff moved for the appointment of counsel in the above entitled 18 action. (ECF No. 31). Plaintiff contends the Court should appoint counsel to represent him because 19 he is unable to afford counsel,1 the issues are complex, he has limited law library access, he cannot 20 find counsel to represent him, there are numerous defendants, and he has limited knowledge of the 21 law. (Id.) Defendants did not respond to Plaintiff’s motion. 22 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust 23 Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Thus, federal courts 24 do not have the authority “to make coercive appointments of counsel.” Mallard v. United States 25 District Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 26 54 F.3d 564, 569 (9th Cir. 1995). 27 28 1 Plaintiff’s reference to the “fee waiver in file” is insufficient for the Court to identify the precise document upon which Plaintiff relies. -1- 11cv378-BEN (WMc) 1 Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to “request” 2 that an attorney represent indigent civil litigants upon a showing of exceptional circumstances. 3 See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 4 819, 823 (9th Cir. 1989). “A finding of exceptional circumstances requires an evaluation of both 5 the ‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se 6 in light of the complexity of the legal issues involved.’ Neither of these issues is dispositive and 7 both must be viewed together before reaching a decision.’” Id. (quoting Wilborn v. Escalderon, 8 789 F.2d 1328, 1331 (9th Cir. 1986)). 9 After reviewing Plaintiff’s motion, the Court denies Plaintiff’s request for the following 10 reasons. First, Plaintiff has not moved to proceed in forma pauperis (“IFP”) and is thus not an 11 indigent civil litigant.2 Second, Plaintiff has survived Defendants’ motion to dismiss the complaint 12 and he has recently file an amended complaint. (See ECF Nos. 27, 33). Thus, Plaintiff has 13 demonstrated a satisfactory aptitude for presenting his claims despite his contention that the issues 14 are complex and he is ignorant of the law. Third, even assuming, arguendo, Plaintiff’s claims have 15 a moderate to high likelihood of success on the merits, the Court nevertheless concludes Plaintiff 16 has failed to demonstrate the “exceptional circumstances” necessary to grant the motion because 17 Plaintiff has thus far demonstrated a satisfactory aptitude for litigating his claims and because the 18 Court does not find the issues to be so complex as to justify the appointment of counsel. 19 Accordingly, Plaintiff’s motion is denied without prejudice. 20 IT IS SO ORDERED. 21 DATED: April 17, 2012 22 Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court 23 24 25 26 27 28 2 The Court previously permitted Plaintiff to proceed IFP for purposes of service only. (ECF No. 28). -2- 11cv378-BEN (WMc)

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