Wilson v. Gardiner et al

Filing 14

ORDER Denying 10 Plaintiff's Motion for Appointment of Counsel Pursuant to 28 U.S.C. § 1915(e)(1). Signed by Magistrate Judge Mitchell D. Dembin on 9/14/2017. (All non-registered users served via U.S. Mail Service)(mpl)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 DAVID WILSON, Case No.: 17cv469-JLS-MDD Plaintiff, 9 10 v. 11 CORPORAL GARDINER, et al., 12 Defendant. [ECF No. 10] 13 14 ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL PURSUANT TO 28 U.S.C. § 1915(e)(1) Plaintiff, proceeding pro se and in forma pauperis with a civil rights 15 Complaint (ECF No. 1) filed pursuant to 42 U.S.C. § 1983, and currently 16 incarcerated at the California Medical Facility, has submitted a motion in 17 which he requests that the Court appoint counsel for him pursuant to 28 18 U.S.C. § 1915(e)(1). (ECF No. 10). 19 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. 20 Resolution Tr. Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). 21 Thus, federal courts do not have the authority “to make coercive 22 appointments of counsel.” Mallard v. United States District Court, 490 U.S. 23 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 24 F.3d 564, 569 (9th Cir. 1995). 25 District courts have discretion, however, pursuant to 28 U.S.C. § 26 1915(e)(1), to “request” that an attorney represent indigent civil litigants 27 upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1 17cv469-JLS-MDD 1 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th 2 Cir. 1989). “A finding of exceptional circumstances requires an evaluation of 3 both the ‘likelihood of success on the merits and the ability of the plaintiff to 4 articulate his claims pro se in light of the complexity of the legal issues 5 involved.’ Neither of these issues is dispositive and both must be viewed 6 together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 7 F.2d 1328, 1331 (9th Cir. 1986)). 8 Here, Plaintiff supports his Motion by stating that his imprisonment 9 will limit his ability to pursue his claims, that he is enrolled in an outpatient 10 mental health program, has limited access to the law library. (ECF No. 10 at 11 1). However, it appears that Plaintiff has a sufficient grasp of his case, the 12 legal issues involved, and is able to adequately articulate the basis of his 13 claims. In fact, Plaintiff’s pro se pleading has survived the initial screening 14 provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b), Plaintiff has effected 15 service on all defendants, and Plaintiff was able to file a motion requesting 16 an extension of time to file an opposition to Defendant’s Motion to Dismiss. 17 (ECF No. 12). 18 Accordingly, under the circumstances of this case, the Court finds that 19 Plaintiff has failed to plead facts sufficient to show the “exceptional 20 circumstances” required for appointment of counsel pursuant to 28 U.S.C. § 21 1915(e)(1) and therefore DENIES without prejudice Plaintiff’s Motion for 22 Appointment of Counsel. 23 IT IS SO ORDERED 24 Dated: September 14, 2017 25 26 27 2 17cv469-JLS-MDD

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