McGinnis v. Ramos

Filing 26

ORDER denying 25 Plaintiff's Second Motion to Request Appointment of Counsel. Signed by Magistrate Judge Jill L. Burkhardt on 1/13/2017. (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
ANTHONY MCGINNIS,

Case No.: 15-cv-2812 JLS (JLB)
Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S
SECOND MOTION TO REQUEST
APPOINTMENT OF COUNSEL

A.T. RAMOS,
Defendant.

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[ECF No. 25]

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Before the Court is Plaintiff’s second motion requesting appointment of counsel.

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(ECF No. 25.) 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. Accordingly, Plaintiff’s motion is DENIED.

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I.

LEGAL STANDARD

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As stated in the Court’s order denying Plaintiff’s first motion requesting the

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appointment of counsel, there is no constitutional right to the appointment of counsel in

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§ 1983 cases. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, the

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Ninth Circuit has held that “a court may under ‘exceptional circumstances’ appoint counsel

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for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009), cert. denied, 559 U.S. 906 (2010) (quoting Agyeman v. Corrs.

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Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom., Gerber v.
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15-cv-2812 JLS (JLB)

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Agyeman, 545 U.S. 1128 (2005)).

“When determining whether ‘exceptional

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circumstances’ exist, a court must consider ‘the likelihood of success on the merits as well

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as the ability of the petitioner to articulate his claims pro se in light of the complexity of

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the legal issues involved.’” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th

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Cir.1983)). Neither of these considerations is dispositive and instead must be viewed

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together. Id.

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II.

DISCUSSION

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A.

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“A plaintiff that provides no evidence of his likelihood of success at trial fails to

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satisfy the first factor of the [exceptional circumstances] test.” Torbert v. Gore, No. 14-

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cv-2991 BEN (NLS), 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). Here, Plaintiff

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offers no evidence to the effect that he has a likelihood of success on the merits. In addition,

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at this stage of the proceedings, there is very little before the Court regarding the merits of

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Plaintiff’s case, other than the assertions in Plaintiff’s complaint. As a result, it is difficult

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at this time for the Court to determine the likelihood that Plaintiff will succeed on the merits

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of his claim. Accordingly, the Court concludes that Plaintiff fails to satisfy the first

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“exceptional circumstances” factor that would support his request for appointment of

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counsel.

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B.

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Plaintiff’s argues that circumstances exist for the appointment of counsel because he

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

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

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dyslexia, his indigent status, and the complexity of the case. (ECF No. 25.) As stated in

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the Court’s order on Plaintiff’s first motion requesting the appointment of counsel, Plaintiff

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fails to demonstrate an inability to represent himself beyond the ordinary burdens

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encountered by prisoners representing themselves pro se. Most of the above circumstances

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are common to most prisoners and do not establish exceptional circumstances supporting

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the appointment of counsel. See, e.g., Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th

Likelihood of Success on the Merits

Ability to Articulate Claims Pro Se

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15-cv-2812 JLS (JLB)

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Cir. 1990) (denying appointment of counsel where plaintiff complained that he had limited

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access to law library and lacked a legal education).

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Second, although Plaintiff argues otherwise, the Court has reviewed Plaintiff’s

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complaint and finds that the issues involved in this case are not particularly complex. And,

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in any event, any purported complexity has not precluded Plaintiff from articulating his

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claims. Plaintiff’s filings to date are well-written and organized, and they demonstrate that

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Plaintiff is able to understand and articulate the essential facts supporting his claim.

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Plaintiff’s pleadings and other submissions to the Court have also demonstrated that

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Plaintiff has an adequate understanding of basic litigation procedure. Thus, the second

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“exceptional circumstances” factor also does not support Plaintiff’s request for

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appointment of counsel.

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III.

CONCLUSION

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Plaintiff has not established the exceptional circumstances required for the

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appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). Accordingly, Plaintiff’s

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second motion requesting that he be appointed counsel (ECF No. 25) is DENIED.

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Dated: January 13, 2017

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15-cv-2812 JLS (JLB)