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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 SOUTHERN DISTRICT OF CALIFORNIA ANTHONY MCGINNIS, Case No.: 15-cv-2812 JLS (JLB) Plaintiff, 11 12 v. 13 ORDER DENYING PLAINTIFF’S SECOND MOTION TO REQUEST APPOINTMENT OF COUNSEL A.T. RAMOS, Defendant. 14 [ECF No. 25] 15 16 17 Before the Court is Plaintiff’s second motion requesting appointment of counsel. 18 (ECF No. 25.) Having reviewed Plaintiff’s request for counsel in conjunction with the case 19 record, the Court concludes that Plaintiff fails to meet the criteria for the Court to appoint 20 him counsel. Accordingly, Plaintiff’s motion is DENIED. 21 I. LEGAL STANDARD 22 As stated in the Court’s order denying Plaintiff’s first motion requesting the 23 appointment of counsel, there is no constitutional right to the appointment of counsel in 24 § 1983 cases. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, the 25 Ninth Circuit has held that “a court may under ‘exceptional circumstances’ appoint counsel 26 for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 27 965, 970 (9th Cir. 2009), cert. denied, 559 U.S. 906 (2010) (quoting Agyeman v. Corrs. 28 Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom., Gerber v. 1 15-cv-2812 JLS (JLB) 1 Agyeman, 545 U.S. 1128 (2005)). “When determining whether ‘exceptional 2 circumstances’ exist, a court must consider ‘the likelihood of success on the merits as well 3 as the ability of the petitioner to articulate his claims pro se in light of the complexity of 4 the legal issues involved.’” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th 5 Cir.1983)). Neither of these considerations is dispositive and instead must be viewed 6 together. Id. 7 II. DISCUSSION 8 A. 9 “A plaintiff that provides no evidence of his likelihood of success at trial fails to 10 satisfy the first factor of the [exceptional circumstances] test.” Torbert v. Gore, No. 14- 11 cv-2991 BEN (NLS), 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). Here, Plaintiff 12 offers no evidence to the effect that he has a likelihood of success on the merits. In addition, 13 at this stage of the proceedings, there is very little before the Court regarding the merits of 14 Plaintiff’s case, other than the assertions in Plaintiff’s complaint. As a result, it is difficult 15 at this time for the Court to determine the likelihood that Plaintiff will succeed on the merits 16 of his claim. Accordingly, the Court concludes that Plaintiff fails to satisfy the first 17 “exceptional circumstances” factor that would support his request for appointment of 18 counsel. 19 B. 20 Plaintiff’s argues that circumstances exist for the appointment of counsel because he 21 cannot prosecute his case effectively given his status as a state prisoner, his limited access 22 to the law library, his lack of knowledge, education, and training about the law, his 23 dyslexia, his indigent status, and the complexity of the case. (ECF No. 25.) As stated in 24 the Court’s order on Plaintiff’s first motion requesting the appointment of counsel, Plaintiff 25 fails to demonstrate an inability to represent himself beyond the ordinary burdens 26 encountered by prisoners representing themselves pro se. Most of the above circumstances 27 are common to most prisoners and do not establish exceptional circumstances supporting 28 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 2 15-cv-2812 JLS (JLB) 1 Cir. 1990) (denying appointment of counsel where plaintiff complained that he had limited 2 access to law library and lacked a legal education). 3 Second, although Plaintiff argues otherwise, the Court has reviewed Plaintiff’s 4 complaint and finds that the issues involved in this case are not particularly complex. And, 5 in any event, any purported complexity has not precluded Plaintiff from articulating his 6 claims. Plaintiff’s filings to date are well-written and organized, and they demonstrate that 7 Plaintiff is able to understand and articulate the essential facts supporting his claim. 8 Plaintiff’s pleadings and other submissions to the Court have also demonstrated that 9 Plaintiff has an adequate understanding of basic litigation procedure. Thus, the second 10 “exceptional circumstances” factor also does not support Plaintiff’s request for 11 appointment of counsel. 12 III. CONCLUSION 13 Plaintiff has not established the exceptional circumstances required for the 14 appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). Accordingly, Plaintiff’s 15 second motion requesting that he be appointed counsel (ECF No. 25) is DENIED. 16 Dated: January 13, 2017 17 18 19 20 21 22 23 24 25 26 27 28 3 15-cv-2812 JLS (JLB)

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