Warner v. Velardi et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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EARL WARNER,
Plaintiff,
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Case No.: 16-cv-1924-LAB (DHB)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
WITHOUT PREJUDICE [ECF No.
40]
v.
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P. VELARDI, et al.,
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Defendants.
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On February 9, 2018, Plaintiff filed a Request for Appointment of Counsel nunc pro
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tunc to February 7, 2018. (ECF No. 40.) Plaintiff, who is proceeding pro se and in forma
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pauperis, argues that appointment is appropriate because this case involves substantial and
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complex legal and factual questions. (Id. at 3.) Plaintiff also argues that he is unable to
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properly investigate and litigate his case while he is incarcerated. (Id. at 3-5)
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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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1991).
“When determining whether ‘exceptional circumstances’ exist, a court must
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16-cv-1924-LAB (DHB)
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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)).
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Here, Plaintiff has litigated this case for a year and a half without assistance of
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counsel. In that time, Plaintiff has demonstrated a more than sufficient ability to articulate
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his claims and understand the arguments, as shown by his amended complaint, various
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motions, and memorandum in support of his current request. (See ECF Nos. 26, 28, 33, 40
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at 3-5, 6-9.) Although the legal issues in this case are not complex, Plaintiff’s difficulty to
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examine medical experts, prison hospital staff, and fellow inmates has made prosecuting
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the case somewhat more complicated. (Id. at 6-9.) However, Plaintiff’s filings and the
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docket demonstrate his ability to distinguish his claims against the defendants and to apply
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relevant law to the facts. (Id.) Thus, Plaintiff has demonstrated the ability to articulate his
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claims pro se in light of the complexity of the legal issues involved.
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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. See
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Garcia v. Smith, No. 10cv1187 AJB(RBB), 2012 WL 2499003, at *4 (S.D. Cal. June 27,
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2012) (denying motion to appoint counsel, finding that although three of the plaintiff’s
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claims survived a motion to dismiss, “it is too early to determine the likelihood of success
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on the merits,” and “[w]ithout more, it is not certain whether any of [the plaintiff’s] causes
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of action will survive summary judgment”). Here, Plaintiff requests appointment of
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counsel simply to assist him in discovery and present his claim at trial, if reached, in order
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to raise his credibility before a yet-to-be-empaneled jury. (See ECF No. 40 at 6-9.) No
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summary judgment pleadings have been filed in this case yet. Nonetheless, Plaintiff is in
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no different position than many pro se prisoner litigants. Accordingly, the Court finds that
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Plaintiff has not demonstrated the “exceptional circumstances” required for the Court to
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appoint counsel.
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16-cv-1924-LAB (DHB)
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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: February 12, 2018
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16-cv-1924-LAB (DHB)
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