Jackson v. Paramo et al

Filing 125

ORDER Denying Motion for Appointment of Counsel [ECF No. 123 ]. Signed by Magistrate Judge Barbara Lynn Major on 5/3/2019. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17CV882-CAB (BLM)

DUWAYNE JACKSON,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Plaintiff,

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v.

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D. PARAMO, et al.,

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[ECF NO. 123]
Defendants.

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On April 9, 2019, Plaintiff submitted a motion for appointment of counsel that was

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received by the Court on April 25, 2019 and accepted by the Court on discrepancy on April 26,

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2019. See ECF Nos. 122-123. Plaintiff argues that counsel should be appointed in part because

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he is indigent and incarcerated with limited access to legal materials. ECF No. 123 at 1-2.

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Plaintiff also argues that the appointment of counsel is necessary to assist him in obtaining

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discovery. Id. Plaintiff notes that he has reached out to several attorneys about representing

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him, but has not received any responses. Id. at 2. Finally, Plaintiff argues that his case is

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complex and that counsel will be needed for a jury trial which he has requested. Id. at 3.

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Appointment of Counsel
The Constitution provides no right to appointment of counsel in a civil case unless an
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indigent litigant may lose his physical liberty if he loses the litigation. See Olson v. Smith, 609

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Fed. Appx. 370, 372 (9th Cir. 2015) (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25

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(1981)). However, under 28 U.S.C. § 1915(e)(1), courts are granted discretion to appoint

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counsel for indigent persons under “exceptional circumstances.” Agyeman v. Corr. Corp. of Am.,

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390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional circumstances demands at least

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“an evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of the

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plaintiff’s ability to articulate his claims ‘in light of the complexity of the legal issues involved.’”

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

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Discussion

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The Court has reviewed all of the documents filed by Plaintiff in this case including the

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instant motion, the complaint (ECF No. 1), a motion to proceed in forma pauperis (ECF No. 2),

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a prison trust fund account statement (ECF No. 3), a prison trust fund certification (ECF No. 4),

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a notice of change of address (ECF No. 5), a previous motion for the appointment of counsel

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(ECF No. 9), the First Amended Complaint (ECF No. 11), a motion for a temporary restraining

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order (ECF No. 13), notices of change of address (ECF Nos. 16-17), a motion for default

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judgment (ECF No. 23), an opposition to Defendants’ motion to dismiss (ECF No. 28), a

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supplemental exhibit to the opposition to Defendants’ motion to dismiss (ECF No. 30), a motion

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for judgment on the proceedings (ECF No. 35), the Second Amended Complaint (ECF No. 37),

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a notice of change of address (ECF No. 38), a motion for order (ECF No. 48), a motion for an

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extension of time in which to file an opposition to Defendants’ motion to dismiss (ECF No. 53),

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an opposition to Defendants’ motion to dismiss the SAC (ECF No. 58), a motion for a pretrial

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settlement conference (ECF No. 66), proposed subpoenas (ECF No. 74), a motion to appoint

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counsel (ECF No. 78), a motion for order compelling discovery (ECF No. 82), a motion for leave

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to file a Third Amended Complaint (ECF No. 87), a motion to compel discovery (ECF No. 90), a

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supplemental document for the Third Amended Complaint (ECF No. 89), a notice of change of

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address (ECF No. 92), and a motion for order for a polygraph examination (ECF No. 113).

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From the Court’s review of these documents, it is clear that Plaintiff is able to articulate

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the claims of his case without legal assistance. Under such circumstances, a district court does
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not abuse its discretion in denying a state prisoner’s request for appointment of counsel as it is

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simply not warranted by the interests of justice. See LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987) (affirming district court’s denial of request for appointment of counsel where pleadings

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demonstrated petitioner had “a good understanding of the issues and the ability to present

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forcefully and coherently his contentions”). The Court previously denied Plaintiff’s request for

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counsel [see ECF Nos. 14 and 79] and Plaintiff’s current request does not provide any new facts

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justifying such an extraordinary remedy.

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demonstrated a likelihood of success on the merits such that his case should be classified as an

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“exceptional circumstance[].” Agyeman, 390 F.3d at 1103; see also Wilborn, 789 F.2d at 1331.

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Because Plaintiff has not alleged the requisite “exceptional circumstances,” the Court

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See ECF No. 123.

Further, Plaintiff has not

DENIES without prejudice Plaintiff’s request for appointment of counsel.
IT IS SO ORDERED.
Dated: 5/3/2019

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