Yablonsky v. California Department of Correction & Rehabilitation et al

Filing 57

ORDER Denying Without Prejudice Motion for Appointment of Counsel [Doc. No. 56 ]. Signed by Judge Cathy Ann Bencivengo on 8/27/2020. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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JOHN HENRY YABLONSKY,
Plaintiff,

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Case No.: 18cv1122-CAB-AGS
ORDER DENYING WITHOUT
PREJUDICE MOTION FOR
APPOINTMENT OF COUNSEL [Doc.
No. 56]

vs.

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CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.
Defendants.

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On August 24, 2020, Plaintiff filed a motion requesting appointment of counsel.

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[Doc. No. 56.] Plaintiff asks the Court to appoint counsel for him because he is

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incarcerated, the issues in the case are complex, and he has limited access to a law library

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due to Covid 19 restrictions. [Doc. No. 56.]

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However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept.

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of Social Servs, 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

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2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to

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“request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of

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America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion is exercised only in

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“exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th

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Cir. 1991). A finding of exceptional circumstances requires the Court “to consider
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18cv1122-CAB-AGS

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whether there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is

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unable to articulate his claims in light of the complexity of the legal issues involved.’”

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Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d

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at 970).

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The Court denies Plaintiff’s request without prejudice at this time because nothing

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in either his First Amended Complaint (“FAC”) or his motion requesting appointment of

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counsel suggests he is incapable of articulating the factual basis for his claims. Id. In fact,

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Plaintiff has articulated many coherent arguments when filing motions and responses to

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motions. See e.g. Doc. Nos. 21, 23, 29, 35, 38, 46, 51.]

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At the same time, Plaintiff’s FAC (as amended by court order), by itself, does not

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yet demonstrate a “likelihood” of success on the merits. Id. Therefore, the Court finds no

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“exceptional circumstances” exist to justify the appointment of counsel at this time. See,

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e.g., Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of counsel

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where prisoner was able to articulate his inadequate medical care claims in light of the

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complexity of the issues involved, but found unlikely to succeed on the merits).

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Should Plaintiff require an extension of time to file a particular pleading due to

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Covid 19 restrictions, he knows how to file such a motion requesting that specific

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extension. See e.g. Doc. No. 19.

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CONCLUSION

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For the reasons set forth above, the motion requesting appointment of counsel is

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DENIED WITHOUT PREJUDICE. IT IS SO ORDERED.

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Dated: August 27, 2020

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