Blow v. San Diego County District Attorney's Office et al

Filing 7

ORDER denying 6 Renewed Motion for Appointment of Counsel. Signed by Judge Larry Alan Burns on 2/3/17. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSHUA ALAN BLOW,

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CASE NO. 17cv158-LAB (KSC)
Plaintiff,

ORDER DENYING RENEWED MOTION
FOR APPOINTMENT OF COUNSEL

vs.
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SAN DIEGO COUNTY DISTRICT
ATTORNEY’S OFFICE, et al.,
Defendants.

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Plaintiff Joshua Blow, proceeding pro se, filed his complaint, along with a motion to

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proceed in forma pauperis and a motion for appointment of counsel. The Court granted him

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leave to proceed in forma pauperis, screened and dismissed his complaint, and denied his

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motion to appoint counsel, noting he had not asked any attorneys about the possibility of

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representing him.

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He has now renewed his motion for appointment of counsel, saying he contacted two

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legal aid societies but neither was equipped to handle a claim in federal court. Although he

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said he made “many calls and attempts to find legal counsel,” he did not say what those

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were, whom he contacted, or why they were not employed to handle his claims.

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In its screening order, the Court pointed out that Blow probably does not have any

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claim that this Court can adjudicate. He has no claim under HIPAA, and any claim he might

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have appears to be a state claim. But because the parties are not diverse, the Court cannot
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17cv158

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exercise diversity jurisdiction over any state law claim he might have. In addition, the claims

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are intertwined with state court proceedings, which likely prevents or severely limits the

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Court’s power to adjudicate them. Because it wasn’t completely certain that Blow could not

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amend to state a federal claim, the Court gave him leave to amend. But at the same time

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it appears unlikely he has any claim that could be heard by this Court. The state court where

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his case is being heard may be the appropriate forum to raise his concerns, or he may have

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some claim that another state court could adjudicate.

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The Court may request counsel to represent an indigent litigant in “exceptional

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circumstances”. Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). Exceptional

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circumstances require the Court to consider the likelihood of Plaintiff’s success on the merits,

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and an evaluation of his ability to articulate his claims. See Terrell v. Brewer, 935 F.2d 1015,

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1017 (9th Cir. 1991). Blow appears to be reasonably able to articulate his claims, at least

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at this stage of the litigation. He is able to file intelligible motions, and the Court understands

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the general nature of his claims. It appears very unlikely, though, that he will succeed on the

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merits, at least in this Court. Both factors weigh against appointing counsel, and the Court

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finds that no exceptional circumstances exist at this time that would justify requesting

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counsel for Blow.

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The motion is DENIED.

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IT IS SO ORDERED.
DATED: February 3, 2017

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HONORABLE LARRY ALAN BURNS
United States District Judge

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17cv158