Warner v. Velardi et al

Filing 41

ORDER denying 40 Motion for Appointment of Counsel Without Prejudice. Signed by Magistrate Judge Mitchell D. Dembin on 2/12/2018. (All non-registered users served via U.S. Mail Service)(jdt)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EARL WARNER, Plaintiff, 12 13 Case No.: 16-cv-1924-LAB (DHB) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL WITHOUT PREJUDICE [ECF No. 40] v. 14 15 P. VELARDI, et al., 16 Defendants. 17 18 19 On February 9, 2018, Plaintiff filed a Request for Appointment of Counsel nunc pro 20 tunc to February 7, 2018. (ECF No. 40.) Plaintiff, who is proceeding pro se and in forma 21 pauperis, argues that appointment is appropriate because this case involves substantial and 22 complex legal and factual questions. (Id. at 3.) Plaintiff also argues that he is unable to 23 properly investigate and litigate his case while he is incarcerated. (Id. at 3-5) 24 Generally, a person has no right to counsel in civil actions. Palmer v. Valdez, 560 25 F.3d 965, 970 (9th Cir. 2009). Districts courts have discretion pursuant to 28 U.S.C. § 26 1915(e)(1), to “request” that an attorney represent indigent civil litigants upon a showing 27 of exceptional circumstances. Id; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 28 1991). “When determining whether ‘exceptional circumstances’ exist, a court must 1 16-cv-1924-LAB (DHB) 1 consider ‘the likelihood of success on the merits as well as the ability of the petitioner to 2 articulate his claims pro se in light of the complexity of the legal issues involved.’” Id. 3 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). “Neither of these 4 considerations is dispositive and instead must be viewed together.” Id. (citing Wilborn v. 5 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 6 Here, Plaintiff has litigated this case for a year and a half without assistance of 7 counsel. In that time, Plaintiff has demonstrated a more than sufficient ability to articulate 8 his claims and understand the arguments, as shown by his amended complaint, various 9 motions, and memorandum in support of his current request. (See ECF Nos. 26, 28, 33, 40 10 at 3-5, 6-9.) Although the legal issues in this case are not complex, Plaintiff’s difficulty to 11 examine medical experts, prison hospital staff, and fellow inmates has made prosecuting 12 the case somewhat more complicated. (Id. at 6-9.) However, Plaintiff’s filings and the 13 docket demonstrate his ability to distinguish his claims against the defendants and to apply 14 relevant law to the facts. (Id.) Thus, Plaintiff has demonstrated the ability to articulate his 15 claims pro se in light of the complexity of the legal issues involved. 16 Further, Plaintiff has not demonstrated a likelihood of success on the merits. 17 Plaintiff’s claims have not yet survived a motion for summary judgment on the merits. See 18 Garcia v. Smith, No. 10cv1187 AJB(RBB), 2012 WL 2499003, at *4 (S.D. Cal. June 27, 19 2012) (denying motion to appoint counsel, finding that although three of the plaintiff’s 20 claims survived a motion to dismiss, “it is too early to determine the likelihood of success 21 on the merits,” and “[w]ithout more, it is not certain whether any of [the plaintiff’s] causes 22 of action will survive summary judgment”). Here, Plaintiff requests appointment of 23 counsel simply to assist him in discovery and present his claim at trial, if reached, in order 24 to raise his credibility before a yet-to-be-empaneled jury. (See ECF No. 40 at 6-9.) No 25 summary judgment pleadings have been filed in this case yet. Nonetheless, Plaintiff is in 26 no different position than many pro se prisoner litigants. Accordingly, the Court finds that 27 Plaintiff has not demonstrated the “exceptional circumstances” required for the Court to 28 appoint counsel. 2 16-cv-1924-LAB (DHB) 1 In light of Plaintiff’s demonstrated ability to articulate his claims and failure to 2 demonstrate a likelihood of success on the merits at this stage, Plaintiff’s Motion for 3 Appointment of Counsel is DENIED without prejudice. 4 5 6 IT IS SO ORDERED. Dated: February 12, 2018 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 16-cv-1924-LAB (DHB)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?