Leoni, Jr. v. Clinton et al

Filing 4

ORDER denying Plaintiff's 2 Motion to Appoint Counsel without prejudice. Signed by Judge Anthony J. Battaglia on 9/7/12. (All non-registered users served via U.S. Mail Service)(cge)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
James S. Leoni, Jr.,
11
Plaintiff,
12
v.
13
14
15
16

Sec. Hillary R. Clinton; Sec. Janet
Napolitano; U.S.A.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 12cv2084 AJB (DHB)
ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL
[Doc. No. 2]

17
Plaintiff moves the Court for an order appointing counsel for him in this civil rights action
18
alleging that Section 301(g) of the Immigration and Nationality Act of 1952 is unconstitutional. On
19
August 23, 2012, Plaintiff filed a Request for Appointment of Counsel under the Civil Rights Act of
20
1964. (Doc. No. 2). The Court notes that Plaintiff’s motion to appoint counsel indicates an employment
21
discrimination action unrelated to his civil rights claim. Based upon Plaintiff’s application and a review
22
of the Complaint, the Court concludes that there is no basis for appointment of counsel.
23
“[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust Corp.
24
(In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Thus, federal courts do not have
25
the authority “to make coercive appointments of counsel.” Mallard v. United States Dist. Ct., 490 U.S.
26
296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir.
27
1995). District courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to “request” that an
28
attorney represent indigent civil litigants upon a showing of exceptional circumstances. See Terrell v.
1

12cv2084 AJB (DHB)

1

Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. Cnty. of King, 883 F.2d 819, 823 (9th Cir. 1989).

2

“A finding of exceptional circumstances requires an evaluation of both the ‘likelihood of success on the

3

merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal

4

issues involved.’ Neither of these issues is dispositive and both must be viewed together before

5

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

6

Here, this Court does not find that exceptional circumstances exist so as to justify an

7

appointment of counsel. Plaintiff has set forth the factual and legal basis for his claim in a

8

straightforward and intelligent manner with sufficient clarity to allow it to be addressed on the merits.

9

Plaintiff’s legal claim, and the factual bases for his claim, is not so complex as to require the

10

appointment of counsel. Accordingly, the Court finds no “exceptional circumstances” requiring the

11

appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) at this time. Plaintiff’s motion is DENIED

12

without prejudice.

13

IT IS SO ORDERED.

14
15

DATED: September 7, 2012

16
17

Hon. Anthony J. Battaglia
U.S. District Judge

18
19
20
21
22
23
24
25
26
27
28
2

12cv2084 AJB (DHB)