O'Brien v. Gularte et al

Filing 77

ORDER Denying Plaintiff's Motion for Appointment of Counsel Pursuant to 28 U.S.C. § 1915(e)(1) (ECF No. 71 ). Motion is denied without prejudice. Signed by Magistrate Judge Mitchell D. Dembin on 3/4/20. (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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11 KORY T. O’BRIEN,

Case No.: 18-cv-980-BAS-MDD
Plaintiff,

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13 v.
14 LISA GULARTE, et al.,
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Defendant.

ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL PURSUANT TO 28
U.S.C. § 1915(e)(1)
[Doc. No. 71]

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Plaintiff, proceeding pro se and in forma pauperis (“IFP”) with a

19 seconded amended civil rights Complaint [Doc. No. 40] filed pursuant to 42
20 U.S.C. § 1983, and currently incarcerated at Valley State Prison, has
21 submitted a motion in which he requests that the Court appoint counsel for
22 him pursuant to 28 U.S.C. § 1915(e)(1) [Doc. No. 71].
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“[T]here is no absolute right to counsel in civil proceedings.” Hedges v.

24 Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994)
25 (citation omitted). Thus, federal courts do not have the authority “to make
26 coercive appointments of counsel.” Mallard v. United States District Court,
27 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S.
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18-cv-980-BAS-MDD

1 Currency, 54 F.3d 564, 569 (9th Cir. 1995).
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Districts courts have discretion, however, pursuant to 28 U.S.C. §

3 1915(e)(1), to “request” that an attorney represent indigent civil litigants
4 upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d
5 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th
6 Cir. 1989). “A finding of exceptional circumstances requires an evaluation of
7 both the ‘likelihood of success on the merits and the ability of the plaintiff to
8 articulate his claims pro se in light of the complexity of the legal issues
9 involved.’ Neither of these issues is dispositive and both must be viewed
10 together before reaching a decision.’” Id. (quoting Wilborn v. Escalderon, 789
11 F.2d 1328, 1331 (9th Cir. 1986)).
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Here, it is apparent that Plaintiff has a sufficient grasp of his case, the

13 legal issues involved, and is able to adequately articulate the basis of his
14 claims. In fact, Plaintiff’s pro se pleading has survived the initial screening
15 provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Court’s docket
16 reflects Plaintiff’s active ability to articulate the claims of his case.
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Accordingly, under the circumstances of this case, the Court finds that

18 Plaintiff has failed to plead facts sufficient to show the “exceptional
19 circumstances” required for appointment of counsel pursuant to 28 U.S.C. §
20 1915(e)(1) and therefore DENIES without prejudice Plaintiff’s Motion for
21 Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1) [Doc. No. 71].
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IT IS SO ORDERED.

23 Dated: March 4, 2020
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18-cv-980-BAS-MDD