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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CARLTON DWAYNE FIELDS, Plaintiff, 12 13 Case No.: 16-cv-01318-MMA (DHB) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL WITHOUT PREJUDICE [ECF No. 27] v. 14 15 RABBI AJHAJ, et al., 16 Defendants. 17 18 19 On April 19, 2017, Plaintiff filed a Request for Appointment of Counsel. (ECF No. 20 27.) Plaintiff, who is proceeding pro se and in forma pauperis, argues that appointment is 21 necessary because he has made several unsuccessful attempts to access the law library, 22 copy machine, legal paper, etc. (Id. at 11.) Plaintiff also argues that he is unable to properly 23 investigate, litigate, serve papers, and file timely motions while he is in administrative 24 segregation. (Ibid.) 25 Generally, a person has no right to counsel in civil actions. Palmer v. Valdez, 560 26 F.3d 965, 970 (9th Cir. 2009). Districts courts have discretion pursuant to 28 U.S.C. § 27 1915(e)(1), to “request” that an attorney represent indigent civil litigants upon a showing 28 of exceptional circumstances. Id; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1 16-cv-01318-MMA (DHB) 1 1991). 2 consider ‘the likelihood of success on the merits as well as the ability of the petitioner to 3 articulate his claims pro se in light of the complexity of the legal issues involved.’” Id. 4 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). “Neither of these 5 considerations is dispositive and instead must be viewed together.” Id. (citing Wilborn v. 6 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). “When determining whether ‘exceptional circumstances’ exist, a court must 7 Here, Plaintiff has litigated this case for almost a year without assistance of counsel. 8 In that time, Plaintiff has demonstrated a more than sufficient ability to articulate his claims 9 and understand the arguments, as shown by his first set of interrogatories and memorandum 10 in support of his current request. (See ECF No. 23, 27 at 8-13.) Although the legal issues 11 in this case are not complex, Plaintiff’s initial difficulty to identify the proper rabbi as a 12 defendant made prosecuting the case somewhat more complicated. 13 However, Plaintiff’s filings and the docket demonstrate the rabbi confusion has been 14 resolved, while his ability to distinguish his claims against the defendants and to apply 15 relevant law to the facts is confirmed by his pleadings. (Id; see ECF No. 27.) Thus, 16 Plaintiff has demonstrated the ability to articulate his claims pro se in light of the 17 complexity of the legal issues involved. (ECF No. 23.) 18 Further, Plaintiff has not demonstrated a likelihood of success on the merits. 19 Plaintiff’s claims have not yet survived a motion for summary judgment on the merits 20 where whether Plaintiff exhausted his administrative remedies is at issue. See Dunsmore 21 v. San Diego Cty. Sheriff’s Dept., No. 11cv0083 IEG (WVG), 2011 WL 5405697, at *6 22 (S.D. Cal. November 8, 2011) (denying motion to appoint counsel, noting that Plaintiff 23 may not have properly exhausted his administrative grievances prior to bringing his claims 24 and the appointment of counsel could not assist him with that procedural requirement at 25 that stage of the proceedings); (see also ECF No. 30). Here, Plaintiff requests appointment 26 of counsel simply to gain legal access which is currently denied to him while in 27 administrative segregation. 28 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 2 16-cv-01318-MMA (DHB) 1 In Plaintiff’s motion, he fails to articulate a need to extend his time to file an opposition 2 beyond the 30 days he currently has due to his lack of legal access. To that extent, Plaintiff 3 can file a motion to extend time demonstrating good cause why the current deadline should 4 extended. Nonetheless, the Court finds that Plaintiff has not demonstrated the “exceptional 5 circumstances” required for the Court to appoint counsel. 6 In light of Plaintiff’s demonstrated ability to articulate his claims and failure to 7 demonstrate a likelihood of success on the merits at this stage, Plaintiff’s Motion for 8 Appointment of Counsel is DENIED without prejudice. 9 10 11 12 13 IT IS SO ORDERED. Dated: April 28, 2017 _________________________ DAVID H. BARTICK United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16-cv-01318-MMA (DHB)

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