Hagan v. Paramo et al

Filing 13

ORDER denying 11 Motion to Appoint Counsel. Plaintiff's motion for appointment of counsel is DENIED, but WITHOUT PREJUDICE so that Plaintiff may re-file the motion with the appropriate documentation supporting his claims of disability. Signed by Judge Anthony J. Battaglia on 2/20/2018. (All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KEVIN HAGAN,

Case No.: 17-cv-00847-AJB-AGS
Plaintiff,

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v.

ORDER DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL

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SERGEANT RUTLEDGE, et al.

(Doc. No. 11)

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Defendants.

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Presently before the Court is Plaintiff Kevin Hagan’s (“Plaintiff”) motion to appoint

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counsel filed on February 9, 2018. (Doc. No. 11.) Based on the reasoning below, the Court

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DENIES Plaintiff’s motion WITHOUT PREJUDICE.

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BACKGROUND

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Plaintiff filed his complaint under the Civil Rights Act 42 U.S.C. § 1983 on April

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26, 2017, alleging violations of his Eighth Amendment right to be free from cruel and

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unusual punishment. (See generally Doc. No. 1.) The same day, Plaintiff filed a motion to

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proceed in forma pauperis (“IFP”), which was granted on July 28, 2017. (Doc. Nos. 2, 5.)

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On January 9, 2018, the Court set a hearing for dismissal for want of prosecution pursuant

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to Federal Rule of Civil Procedure 4(m) as to Defendants. (Doc. No. 7.) The hearing took
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place on February 1, 2018, with Plaintiff appearing telephonically. (Doc. No. 9.) Plaintiff

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informed the Court that the person who had been assisting him with his case was no longer

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available and that he was unsure if he had received the summons and U.S. Marshal Form

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285 needed to properly serve Defendant Rutledge. Based upon these representations, the

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Court extended the time for Plaintiff to serve Defendant for a period of ninety days and

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requested that Form 285 be re-sent to Plaintiff. (Id.) The IFP packet and summons sent to

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Plaintiff was returned as “refused” on February 13, 2018. (Doc. No. 12.) On February 9,

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2018, Plaintiff filed the instant matter, his motion to appoint counsel. (Doc. No. 11.)

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LEGAL STANDARD

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The Constitution provides no right to appointment of counsel in a civil case unless

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an indigent “litigant may lose his [or her] physical liberty if he [or she] loses the litigation.”

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Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. §

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1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons.

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However, this discretion may be exercised only under “exceptional circumstances.” Terrell

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

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requires an evaluation of both ‘the likelihood of success on the merits and the ability of the

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

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involved.’ Neither of these factors is dispositive and both must be viewed together before

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reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986) (citations omitted)).

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DISCUSSION

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Plaintiff’s motion for appointment of counsel states that he is unable to read or write

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and that he suffers from depression and anxiety. 1 (Doc. No. 11 at 1.) Further, the motion

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provides that the inmate who had been helping Plaintiff with his paperwork was moved to

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another prison. (Id. at 2.)

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Plaintiff’s motion was written by Raul Arellano, another inmate, who states that he is
unable to assist Plaintiff as he is litigating his own set of cases. (Doc. No. 11 at 1–2.)
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The Court highlights that allegations of poor mental health and inadequate education

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are usually exceptional circumstances that at times justify appointment of counsel.

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However, as currently pled, Plaintiff’s motion is entirely devoid of any legal or factual

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substance to establish that he lacks the education to properly litigate his claims or that his

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mental disability impedes his ability to prosecute his case. Without such documentation,

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the Court has nothing on which it can make the required determination regarding

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appointment of counsel. See Porchia v. Gower, No. 2:15-cv-0021 JAM AC P (TEMP),

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2016 WL 93257, at *2 (E.D. Cal. Jan. 7, 2016); see also Martinez v. Beard, Civil No. 13-

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CV-1457-BTM (WVG), 2015 WL 5331239, at *4–5 (S.D. Cal. Sept. 14, 2015) (examining

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the plaintiff’s State of California Mental Health Placement Chrono, education files, and

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academic transcripts to see if the plaintiff should be appointed counsel based on his lack of

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education and mental disability). Accordingly, Plaintiff’s motion for appointment of

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counsel must be DENIED.

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CONCLUSION

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As explained in more detail above, Plaintiff’s motion for appointment of counsel is

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DENIED, but WITHOUT PREJUDICE so that Plaintiff may re-file the motion with the

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appropriate documentation supporting his claims of disability.

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IT IS SO ORDERED.

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Dated: February 20, 2018

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