Johnson v. De La Trinidad et al

Filing 48

ORDER Denying 37 Plaintiff's Third Motion for Appointment of Counsel. Signed by Magistrate Judge Mitchell D. Dembin on 05/29/2018. (All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SEDRIC EUGENE JOHNSON,
Plaintiff,

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v.

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CORRECTIONAL OFFICER A. de
la TRINIDAD, et al.,

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ORDER DENYING PLAINTIFF'S
THIRD MOTION FOR
APPOINTMENT OF COUNSEL

Defendants.

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Case No.: 17cv731-WQH-MDD

On May 17, 2018, Plaintiff filed the present motion asking for appointed

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counsel. (ECF No. 37). Plaintiff previously requested counsel on August 16,

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2017, and January 8, 2018. (ECF Nos. 9, 28). Both of those requests were

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denied.

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Plaintiff states that (1) he is unable to afford counsel, (2) he lacks the

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necessary funding to acquire an attorney, (3) he is limited in his ability to

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perform research, (4) he is uneducated in the law and not licensed to practice

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law, and (4) has made repeated unsuccessful attempts to obtain counsel.

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(ECF No. 37 at 1-2).

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Generally, a person has no right to counsel in civil actions. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009). District courts have discretion

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pursuant to 28 U.S.C. § 1915(e)(1), to “request” that an attorney represent
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17cv731-WQH-MDD

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indigent civil litigants upon a showing of exceptional circumstances. Terrell

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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional

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circumstances requires an evaluation of both ‘the likelihood of success on the

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merits and the ability of the petitioner to articulate his claims pro se in light

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of the complexity of the legal issues involved.’ Neither of these factors is

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dispositive and both must be viewed together before reaching a decision.” Id.

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at 1017 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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Plaintiff has litigated this case for over a year without the assistance of

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counsel. In that time, Plaintiff has demonstrated an ability to articulate his

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claims and his pleading survived the early screening process. Further,

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Plaintiff has been able to articulate his position and advocate for himself in

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obtaining discovery from Defendants, including filing motions to compel with

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respect to his discovery practice. (ECF Nos. 39, 41). As the Court has

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previously indicated, Plaintiff’s claims are not particularly complex and at

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this stage of the proceedings, Plaintiff has not yet demonstrated a likelihood

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of success on the merits. (See ECF No. 29).

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As a result, Plaintiff has not demonstrated the “exceptional

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circumstances” required for the Court to appoint counsel. Accordingly,

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Plaintiff’s Motion to Appoint Counsel is DENIED without prejudice.

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IT IS SO ORDERED.
Dated: May 29, 2018

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17cv731-WQH-MDD