Ayala v. Fermon et al

Filing 36

ORDER Denying 35 Motion to Appoint Counsel Without Prejudice. Signed by Judge Gonzalo P. Curiel on 8/12/2015. (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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JONATHAN AYALA,
CDCR #F-25736,
Plaintiff,

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Civil
3:14-cv-1794-GPC-JLB
No.
ORDER DENYING MOTION TO
APPOINT COUNSEL
[ECF No. 35]

vs.

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W. FERMON; W.L. MONTGOMERY,

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Defendants.

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On August 11, 2015, Plaintiff Jonathan Ayala (“Plaintiff”), proceeding pro se,

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filed a letter “[r]equesting counsel.” (ECF No. 35.)The Court construes this as a motion

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for appointment of counsel. This is Plaintiff’s second such motion. (See ECF No. 16.)

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This is a civil rights action where Plaintiff alleges violations of 42 U.S.C. § 1983 based

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on allegations that Defendant W. Fermon, a prison guard, shot Plaintiff. (ECF No. 8.)

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Generally, litigants have no right to counsel in civil actions. See Storseth v. Spellman,

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654 F.2d 1349, 1353 (9th Cir. 1981). However, the Court may appoint counsel for

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indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) in “exceptional
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14cv1794 GPC (JLB)

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circumstances.” Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004),

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cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128 (2005). In determining whether

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“exceptional circumstances” exist, the Court considers “the likelihood of success on the

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merits” as well as “the ability of the petitioner to articulate his claims pro se in light of

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the complexity of the legal issues involved.” Wilborn v. Escalderson, 789 F.2d 1328,

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1331 (9th Cir.1986) (citations and internal quotation marks omitted). “Neither of these

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factors is dispositive and both must be viewed together before reaching a decision on

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request of counsel under section 1915(d).” Id.

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Plaintiff states that he “seeks assistance with the very complex proceedings that

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have arised [sic]” and that he “cannot grasp the legal meaning set upon now.” (ECF No.

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35.) However, the Court has previously reviewed Plaintiff’s complaint and found that

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the issues in this case are not complex, and the case has not significantly changed since

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that time. (See ECF No. 17.) Accordingly, the Court finds that, based on the record

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before it, there do not exist exceptional circumstances that warrant the appointment of

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counsel and thus DENIES without prejudice Plaintiff’s motion for appointment of

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counsel. (ECF No. 35.)

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IT IS SO ORDERED.

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DATED: August 12, 2015

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HON. GONZALO P. CURIEL
United States District Judge

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14cv1794 GPC (JLB)