Farr v. Paramo et al

Filing 29

ORDER Denying Without Prejudice 10 Motion For Appointment of Counsel. Signed by Judge Janis L. Sammartino on 3/23/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JAMES EMMETT FARR,

Case No.: 16-cv-1279-JLS (WVG)
Plaintiff,

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ORDER DENYING WITHOUT
PREJUDICE MOTION FOR
APPOINTMENT OF COUNSEL

v.
DANIEL PARAMO, Warden, et al.,

(ECF No. 10)

Defendants.

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Presently before the Court is Plaintiff James Emmett Farr’s Motion for Appointment

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of Counsel and Declaration and Memorandum in Support Thereof (“Mot. for Counsel”).

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(ECF No. 10.) Plaintiff requests the Court to “appoint[] counsel in this serious and highly

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complex case . . . .” (Id. at 1.)

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The Constitution provides no right to appointment of counsel in a civil case unless

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an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept.

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of Soc. Servs., 452 U.S. 18, 25 (1981). Nonetheless, under section 1915(e)(1) of title 28 of

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the United States Code, district courts have the discretion to appoint counsel for indigent

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persons. This discretion, however, may be exercised only under “exceptional

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circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of

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exceptional circumstances requires an evaluation of both the ‘likelihood of success on the

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merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity
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of the legal issues involved.’ Neither of these issues is dispositive and both must be viewed

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together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986)).

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In the present case, Plaintiff—a prisoner at the Richard J. Donovan Correctional

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Facility (“RJD”)—indicates that he cannot afford to pay an attorney to litigate this matter,

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(Mot. for Counsel 1), and that he will be unable to effectively litigate the case both due to

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unfamiliarity with the law and the electronic format in which the prison library’s legal

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documents are contained, (id. at 2). Plaintiff further indicates that although he believes he

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has “a colorable claim for relief,” the complexity of the issues presented “might try even

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an established advocate’s skills,” and therefore “are admittedly too much for this plaintiff

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to fairly and adequately prosecute in this court.” (Id.)

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However, Plaintiff has successfully navigated the Court system thus far, filing a

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Complaint with attachments totaling one-hundred-and-nineteen pages. (ECF No. 1.) And

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Plaintiff even tracked down supplemental addresses for two Defendants the United States

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Marshals were initially unable to serve. (ECF No. 18.) This indicates that Plaintiff at least

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has a base understanding of and ability to litigate this action. And although Plaintiff may

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be unfamiliar with the electronic format of his current law library, there is no indication it

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will effectively foreclose Plaintiff’s ability to litigate this action.

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Further, Plaintiff’s Summonses were only recently returned executed, and the early

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stage of the litigation also counsels against appointing counsel at this time. See Wilborn,

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789 F.2d at 1331 (“If all that was required to establish successfully the complexity of the

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

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all cases would involve complex legal issues.”). Finally, while the Court has previously

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determined that Plaintiff’s case “may not be entirely without merit,” (Order Directing U.S.

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Marshal Serv. 2, ECF No. 11), that determination was made only within the context of the

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very “low threshold” for proceeding past the sua sponte screening required for the Court

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to order United States Marshal service. See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th

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Cir. 2012). Almost the entirety of Plaintiff’s Complaint relies on either Plaintiff’s own
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statements of the wrongs he has allegedly suffered at the hands of Defendants, or on

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inferences from the documents Plaintiff attached to his Complaint. Accordingly, the Court

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simply does not have enough facts at this time to determine whether Plaintiff has a strong

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likelihood of success on the merits such that appointment of counsel is warranted.

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In sum, Plaintiff has adequately litigated the case thus far, the case is still in its

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infancy, and the Court is currently unable to determine how likely Plaintiff is to succeed

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on the merits of his claim. For these reasons, neither the interests of justice nor exceptional

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circumstances warrant appointment of counsel at this time. Accordingly, the Court

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DENIES Plaintiff’s request WITHOUT PREJUDICE. Should circumstances change,

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Plaintiff may be permitted to file another Motion for Appointment of Counsel.
IT IS SO ORDERED.
Dated: March 23, 2017

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