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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID WILSON,

Case No.: 17cv469-JLS-MDD
Plaintiff,

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v.

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CORPORAL GARDINER, et al.,

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Defendant.

[ECF No. 10]

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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

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Complaint (ECF No. 1) filed pursuant to 42 U.S.C. § 1983, and currently

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incarcerated at the California Medical Facility, has submitted a motion in

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which he requests that the Court appoint counsel for him pursuant to 28

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U.S.C. § 1915(e)(1). (ECF No. 10).

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“[T]here is no absolute right to counsel in civil proceedings.” Hedges v.

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Resolution Tr. Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted).

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Thus, federal courts do not have the authority “to make coercive

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appointments of counsel.” Mallard v. United States District Court, 490 U.S.

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296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54

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F.3d 564, 569 (9th Cir. 1995).

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District courts have discretion, however, pursuant to 28 U.S.C. §

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1915(e)(1), to “request” that an attorney represent indigent civil litigants

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upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d
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17cv469-JLS-MDD

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1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th

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Cir. 1989). “A finding of exceptional circumstances requires an evaluation of

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both the ‘likelihood of success on the merits and the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues

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involved.’ Neither of these issues is dispositive and both must be viewed

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together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789

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F.2d 1328, 1331 (9th Cir. 1986)).

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Here, Plaintiff supports his Motion by stating that his imprisonment

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will limit his ability to pursue his claims, that he is enrolled in an outpatient

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mental health program, has limited access to the law library. (ECF No. 10 at

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1). However, it appears that Plaintiff has a sufficient grasp of his case, the

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legal issues involved, and is able to adequately articulate the basis of his

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claims. In fact, Plaintiff’s pro se pleading has survived the initial screening

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provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b), Plaintiff has effected

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service on all defendants, and Plaintiff was able to file a motion requesting

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an extension of time to file an opposition to Defendant’s Motion to Dismiss.

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(ECF No. 12).

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Accordingly, under the circumstances of this case, the Court finds that

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Plaintiff has failed to plead facts sufficient to show the “exceptional

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circumstances” required for appointment of counsel pursuant to 28 U.S.C. §

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1915(e)(1) and therefore DENIES without prejudice Plaintiff’s Motion for

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Appointment of Counsel.

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IT IS SO ORDERED

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Dated: September 14, 2017

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17cv469-JLS-MDD