Cotton v. Geraci et al

Filing 14

ORDER Denying Ex Parte Motion for Appointment of Counsel (ECF No. 13 ). Signed by Judge Cynthia Bashant on 4/15/20. (All non-registered users served via U.S. Mail Service)(jmo)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DARRYL COTTON,
Plaintiff,

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v.

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Case No. 18-cv-325-BAS-MDD
ORDER DENYING EX PARTE
MOTION FOR APPOINTMENT
OF COUNSEL
[ECF No. 13]

LARRY GERACI, et al.,
Defendants.

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Plaintiff Darryl Cotton followed an ex parte motion for reconsideration “re:

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appointment of counsel and leave to amend complaint.” (ECF No. 13.) The Court

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previously stayed Plaintiff’s case until resolution of the parallel state action and

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denied as moot Plaintiff’s motion for appointment of counsel. (ECF No. 7.) The

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stay has since been lifted. Plaintiff now seeks reconsideration of the order denying

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his request for counsel and also seeks leave to amend. Although Plaintiff titles the

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motion as one for reconsideration, the Court will simply evaluate his request for

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counsel.

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

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Resolution Tr. Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994). Thus,

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federal courts do not have the authority “to make coercive appointments of counsel.”
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Mallard v. U.S. District Court, 490 U.S. 296, 310 (1989); see also United States v.

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$292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).

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Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1)

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to “request” that an attorney represent indigent civil litigants upon a showing of

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

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1103 (9th Cir. 2004); accord Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997).

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“A finding of the exceptional circumstances of the plaintiff seeking assistance

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requires at least an evaluation of the likelihood of the plaintiff’s success on the merits

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and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the

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complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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Having reviewed Plaintiff’s request, the Court concludes the circumstances

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fail to demonstrate “exceptional circumstances” warranting the appointment of

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counsel at this time. First, the case is still in the very early stages and Plaintiff’s

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success on the merits is unclear. And second, Plaintiff’s complaint is extremely

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detailed and is full of factual allegations. Because Plaintiff states he is going to

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amend his complaint, his ability to articulate his claims is also unclear at this time.

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The Court DENIES WITHOUT PREJUDICE Plaintiff’s motion for appointment

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of counsel.

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Plaintiff also seeks leave to amend his complaint. A party may amend its

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pleading “once as a matter of course 21 days after service of a responsive pleading

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or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”

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Fed. R. Civ. P. 15(a)(1)(B). Plaintiff’s complaint has not yet been served, thus, he

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does not need to request permission to amend his complaint and may amend it

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pursuant to Federal Rule of Civil Procedure 15(a)(1).

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IT IS SO ORDERED.
DATED: April 15, 2020
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