Jefferson v. Hollingsworth et al

Filing 37

ORDER Denying 29 Motion to Appoint Counsel and for Supporting Evidence Against Defendants. Plaintiff's Motion to Appoint Counsel and Requests for Evidence is denied without prejudice. Signed by Magistrate Judge Bernard G. Skomal on 5/8/2018. (All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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James Leroye Jefferson,

Case No.: 17-cv-1099-MMA-BGS
Plaintiff,

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v.

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ORDER DENYING MOTION TO
APPOINT COUNSEL AND FOR
SUPPORTING EVIDENCE
AGAINST DEFENDANTS

Kathy Hollingsworth, PIA Bakery
Supervisor, et al.;

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Defendants.

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[ECF No. 29]

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James Leroye Jefferson (“Plaintiff”), a state prisoner proceeding pro se and in forma
pauperis, has filed this civil rights action seeking relief pursuant to 42 U.S.C. § 1983. (ECF

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No. 1.) Before the Court is Plaintiff’s Motion to Appoint Counsel and for Supporting

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Evidence Against Defendants (ECF No. 29). For the following reasons, Plaintiff’s Motion

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is DENIED without prejudice.

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I.

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MOTION TO APPOINT COUNSEL

In his1 Motion, Plaintiff asks the Court to appoint counsel to help him send his
motions and documents because of his lack of knowledge of the legal system. (Id. at 2.2)

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Plaintiff uses both male and female pronouns in the pleadings filed to date. The Court will use male
pronouns for purposes of consistency, unless and until Plaintiff indicates a specific preference otherwise.
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The Court cites to the blue CM/ECF-generated document and page numbers located at the top of each
page.
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This is Plaintiff’s third request for the appointment of counsel. (See ECF Nos. 5, 8 [denying

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first request], 11, 22 [denying second request].)

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As stated in prior orders denying Plaintiff’s request for appointment of counsel,

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“it is well established that there is generally no constitutional right to counsel in civil

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cases.” United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citing Hedges v.

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Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994); Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)).

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Further, there is no constitutional right to a court-appointed attorney in section 1983 claims.

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth, 654 F.2d at 1353).

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While a district court has limited discretion under 28 U.S.C. § 1915(e)(l) to “request”

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that an attorney represent an indigent civil litigant, it may exercise that discretion only

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under “exceptional circumstances.” Agyeman v. Corr. Corp. of America, 390 F.3d 1101,

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1103 (9th Cir. 2004); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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Determining whether such “exceptional circumstances” exist requires consideration of the

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Plaintiff’s “likelihood of success on the merits” as well as whether he “is unable to

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articulate his claims in light of the complexity of the issues involved.” Harrington v.

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Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015); Agyeman, 390 F.3d at 1103.

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Plaintiff has not asserted any new information establishing the “exceptional

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circumstances” necessary to warrant appointment of counsel. (See ECF No. 29.) Nothing

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in his filings since the denial of his most recent motion to appoint counsel indicates that he

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is unable to articulate his claims and requests to the Court. In fact, recent docket entries

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demonstrate that Plaintiff remains able to adequately litigate his claims by filing

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appropriate motions and requests with the Court. (See, e.g., ECF No. 32 [motion for

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extension]; ECF No. 34 [response in opposition to motion to dismiss].) Plaintiff’s equal

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protection claim was able to partially withstand a motion to dismiss and he has been granted

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leave to amend other claims. (See ECF No. 36 at 6 [“Plaintiff’s allegations are sufficient

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to established that Defendant Hollingsworth intentionally discriminated against him on all

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three grounds.”].) He has not demonstrated that he is unable to represent himself (beyond
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the ordinary burdens encountered by incarcerated persons representing themselves). See

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Jones v. Kuppinger, 2:13-CV-0451 WBS AC, 2015 WL 5522290, at *3-4 (E.D. Cal. Sept.

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17, 2015) (“Circumstances common to most prisoners, such as a deficient general

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education, lack of knowledge of the law, mental illness and disability, do not in themselves

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establish exceptional circumstances warranting appointment of voluntary civil counsel.”).

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Further, as this case remains in the initial pleadings stage, Plaintiff has not yet shown a

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likelihood of success on the merits.

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The Court acknowledges that any pro se litigant “would be better served with the

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assistance of counsel.” Rand, 113 F.3d at 1525. However, Plaintiff continues to show an

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ability to articulate his claims in this matter. Accordingly, as Plaintiff has not asserted any

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new facts that merit the Court’s discretionary appointment of counsel, his request for

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appointment of pro bono counsel is DENIED without prejudice.

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II.

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In his Motion, Plaintiff also requests his central file, his health records, and a

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summary of all the 602 and state complaints made by inmates against Defendants Lisa

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Gularte and Kathy Hollingsworth. (ECF No. 29 at 1-2.)

MOTION FOR EVIDENCE TO SUPPORT HIS CLAIMS

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As noted in Judge Anello’s May 2, 2018 Order, Plaintiff’s discovery requests are

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premature pursuant to Federal Rule of Civil Procedure 26. (ECF No. 36 at 6.) Discovery

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has not been authorized yet in this case and will not be authorized until a scheduling order

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regulating discovery and setting deadlines has been issued. Thus, such a request is not

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warranted.

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III.

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For the reasons discussed above, Plaintiff’s Motion to Appoint Counsel and

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CONCLUSION

Requests for Evidence (ECF No. 11) is DENIED without prejudice. ¶
IT IS SO ORDERED.
Dated: May 8, 2018

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