Fields v. RJ Donovan Correctional Facility

Filing 32

ORDER Denying 27 Motion for Appointment of Counsel without Prejudice. Signed by Magistrate Judge David H. Bartick on 4/28/2017. (All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CARLTON DWAYNE FIELDS,
Plaintiff,

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Case No.: 16-cv-01318-MMA (DHB)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
WITHOUT PREJUDICE [ECF No.
27]

v.

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RABBI AJHAJ, et al.,

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Defendants.

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On April 19, 2017, Plaintiff filed a Request for Appointment of Counsel. (ECF No.

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27.) Plaintiff, who is proceeding pro se and in forma pauperis, argues that appointment is

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necessary because he has made several unsuccessful attempts to access the law library,

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copy machine, legal paper, etc. (Id. at 11.) Plaintiff also argues that he is unable to properly

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investigate, litigate, serve papers, and file timely motions while he is in administrative

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segregation. (Ibid.)

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Generally, a person has no right to counsel in civil actions. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). Districts courts have discretion pursuant to 28 U.S.C. §

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1915(e)(1), to “request” that an attorney represent indigent civil litigants upon a showing

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of exceptional circumstances. Id; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
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16-cv-01318-MMA (DHB)

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1991).

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consider ‘the likelihood of success on the merits as well as the ability of the petitioner to

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articulate his claims pro se in light of the complexity of the legal issues involved.’” Id.

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(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). “Neither of these

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considerations is dispositive and instead must be viewed together.” Id. (citing Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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

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Here, Plaintiff has litigated this case for almost a year without assistance of counsel.

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In that time, Plaintiff has demonstrated a more than sufficient ability to articulate his claims

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and understand the arguments, as shown by his first set of interrogatories and memorandum

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in support of his current request. (See ECF No. 23, 27 at 8-13.) Although the legal issues

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in this case are not complex, Plaintiff’s initial difficulty to identify the proper rabbi as a

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defendant made prosecuting the case somewhat more complicated.

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However, Plaintiff’s filings and the docket demonstrate the rabbi confusion has been

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resolved, while his ability to distinguish his claims against the defendants and to apply

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relevant law to the facts is confirmed by his pleadings. (Id; see ECF No. 27.) Thus,

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Plaintiff has demonstrated the ability to articulate his claims pro se in light of the

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complexity of the legal issues involved.

(ECF No. 23.)

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Further, Plaintiff has not demonstrated a likelihood of success on the merits.

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Plaintiff’s claims have not yet survived a motion for summary judgment on the merits

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where whether Plaintiff exhausted his administrative remedies is at issue. See Dunsmore

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v. San Diego Cty. Sheriff’s Dept., No. 11cv0083 IEG (WVG), 2011 WL 5405697, at *6

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(S.D. Cal. November 8, 2011) (denying motion to appoint counsel, noting that Plaintiff

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may not have properly exhausted his administrative grievances prior to bringing his claims

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and the appointment of counsel could not assist him with that procedural requirement at

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that stage of the proceedings); (see also ECF No. 30). Here, Plaintiff requests appointment

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of counsel simply to gain legal access which is currently denied to him while in

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administrative segregation.

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Defendant’s motion for summary judgment is not due until May 29, 2017. (ECF No. 31.)

(See ECF No. 27 at 11-12.)

Plaintiff’s opposition to

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16-cv-01318-MMA (DHB)

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In Plaintiff’s motion, he fails to articulate a need to extend his time to file an opposition

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beyond the 30 days he currently has due to his lack of legal access. To that extent, Plaintiff

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can file a motion to extend time demonstrating good cause why the current deadline should

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extended. Nonetheless, the Court finds that Plaintiff has not demonstrated the “exceptional

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circumstances” required for the Court to appoint counsel.

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In light of Plaintiff’s demonstrated ability to articulate his claims and failure to

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demonstrate a likelihood of success on the merits at this stage, Plaintiff’s Motion for

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Appointment of Counsel is DENIED without prejudice.

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IT IS SO ORDERED.
Dated: April 28, 2017
_________________________
DAVID H. BARTICK
United States Magistrate Judge

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16-cv-01318-MMA (DHB)