Jennings v. Polanco et al

Filing 15

ORDER denying without prejudice plaintiff's 14 Motion to Appoint Counsel. Signed by Magistrate Judge Bernard G. Skomal on 12/30/15. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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BRIAN JENNINGS,

Civil
No.

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Plaintiff,

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v.
SAN DIEGO JAIL HEALTH CARE
PROVIDERS, JUSTIN POLANCO M.D.
and DOCTOR GOLDSTEIN, et al.,
Defendants.

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ORDER DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL
WITHOUT PREJUDICE
[ECF No. 14. ]

On November 30, 2015, Plaintiff Brian Jennings, a prisoner proceeding pro se and
In Forma Pauperis (“IFP”) in this civil rights action, filed a motion to appoint counsel.
(ECF No. 14.) He requests appointment of counsel because he is indigent and cannot
afford to hire a lawyer. Id. at p.1.
“There is no constitutional right to appointed counsel in a § 1983 action.” Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d
1349, 1353 (9th Cir. 1981)); see also Hedges v. Resolution Trust Corp. (In re Hedges), 32
F.3d 1360, 1363 (9th Cir. 1994) (“[T]here is no absolute right to counsel in civil
proceedings.”) (citation omitted). Federal courts do not have the authority “to make
coercive appointments of counsel.” Mallard v. United States District Court, 490 U.S.
296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564,
569 (9th Cir. 1995).
Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to
“request” that an attorney represent indigent civil litigants upon a showing of
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“exceptional circumstances.” See Agyeman v. Corrections Corp. of America, 390 F.3d

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1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525. “A finding of the exceptional

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circumstances of the plaintiff seeking assistance requires at least an evaluation of the

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likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s

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ability to articulate his claims ‘in light of the complexity of the legal issues involved.’”

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Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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The Court denies Plaintiff’s request without prejudice, as neither the interests of
justice nor exceptional circumstances warrant the appointment of counsel at this time.

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LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. Plaintiff

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has thus far been able to articulate his claims, as the Court found that Plaintiff’s

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complaint contains allegations sufficient to survive the sua sponte screening required by

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28 U.S.C. §§1915(e)(2) and 1915A(b). (See ECF No. 4.) Moreover, it does not appear

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that the legal issues presented by Plaintiff’s Eighth Amendment and Fourteenth

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Amendment claims are so complex that counsel is warranted at this stage of the

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proceedings. See Wilborn v. Escalderon, 789 F.3d 1328, 1331 (9th Cir. 1986) (noting

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that, “[i]f all that was required to establish successfully the complexity of the relevant

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issues was a demonstration of the need for development of further facts, practically all

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cases would involve complex legal issues.”). Accordingly, Plaintiff’s motion is

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DENIED without prejudice.

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DATED: December 30, 2015
Hon. Bernard G. Skomal
U.S. Magistrate Judge, U.S. District Court

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