McGinnis v. Ramos

Filing 22

ORDER denying 21 Motion to Request Appointment of Counsel. Signed by Magistrate Judge Jill L. Burkhardt on 12/9/2016. (All non-registered users served via U.S. Mail Service)(kcm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Anthony McGinnis,

Case No.: 15-cv-02812-JLS-JLB
Plaintiff,

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Order Denying Motion to Request
Appointment of Counsel

v.
A.T. Ramos,

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[ECF No. 21]

Defendant.

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Before the Court is Plaintiff’s motion requesting the appointment of counsel (ECF

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No. 21). Having reviewed Plaintiff’s request for counsel in conjunction with the case

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record, the Court concludes that Plaintiff fails to meet the criteria for the Court to appoint

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him counsel. Plaintiff’s motion is DENIED.

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There is no constitutional right to the appointment of counsel in §1983 cases.

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Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). “However, a court may under

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‘exceptional circumstances’ appoint counsel for indigent civil litigants.” Palmer v. Valdez,

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560 F.3d 965, 970 (9th Cir. 2009) (§1983 action), cert. denied, 130 S. Ct. 1282 (2010).

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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the petitioner to articulate his

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claims pro se in light of the complexity of the legal issues involved.’” Id. (quoting

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Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983)).

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First, Plaintiff offers no argument to the effect that he has a likelihood of success on

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the merits. Arguably, “it is too early to determine the likelihood of success on the merits”

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given that “it is not certain whether” Plaintiff’s amended complaint will survive

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Defendant’s pending motion to dismiss and anticipated motion for summary judgment. See

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Garcia v. Smith, No. 10cv1187-AJB-RBB, 2012 WL 2499003, at *3 (S.D. Cal. June 27,
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15-cv-02812-JLS-JLB

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2012) (citations omitted). Therefore, the first “exceptional circumstances” factor does not

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support Plaintiff’s request for appointment of counsel.

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Second, Plaintiff argues circumstances exist for the appointment of counsel because

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he cannot prosecute his case effectively given his status as a state prisoner, limited access

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to the law library, lack of knowledge, education, and training about the law, indigent status,

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and the complexity of the case. (ECF No. 21.) Plaintiff fails to demonstrate an inability

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to represent himself beyond the ordinary burdens encountered by prisoners representing

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themselves pro se. And, although Plaintiff argues this case is complex, Plaintiff’s filings

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to date are well-written and demonstrate that he is able understand and articulate the

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essential facts supporting his claims. Thus, at least at this initial pleading stage, the Court

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finds Plaintiff has demonstrated and an adequate understanding of the relevant facts as well

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as the legal issues involved. Therefore, the second “exceptional circumstances” factor also

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does not support Plaintiff’s request for appointment of counsel.

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Plaintiff’s request for counsel is denied.
Dated: December 9, 2016

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15-cv-02812-JLS-JLB