Oggs v. Navarro et al

Filing 51

ORDER Denying 48 Plaintiff's Motion for Appointment of Counsel for Deposition. Signed by Magistrate Judge Linda Lopez on 9/6/2019. (All non-registered users served via U.S. Mail Service)(rmc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

KJONNA OGGS,

Case No.: 18cv1361-CAB-LL
Plaintiff,

12
13

v.

14

ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL FOR DEPOSITION

O. NAVARRO, Correction Officer, et al.,

15

Defendants.

[ECF No. 48]

16
17
18

On August 14, 2019, nunc pro nunc, Plaintiff, a state prisoner proceeding pro se and

19

in forma pauperis, filed a motion requesting that this Court appoint counsel for the limited

20

purpose of Defendants’ deposition of Plaintiff, and to postpone his deposition until the

21

Court rules on Plaintiff’s motion requesting counsel. ECF No. 48. In support of his request

22

for counsel, Plaintiff claims that assistance of counsel is “highly necessary” because

23

(1) Plaintiff is receiving help to litigate this case; (2) he reads and writes at a second-grade

24

level; (3) “he is an extreme mental health case with multiple health diagnoses”; and (4) he

25

suffers from severe memory problems. Id. at 1-2. Plaintiff further contends that he needs

26

counsel in order to answer questions, help him read and understand, and prevent him from

27

incriminating himself. Id. at 2. Having considered Plaintiff’s motion and the applicable

28

law, the motion is DENIED WITHOUT PREJUDICE for the reasons set forth below.
1
18cv1361-CAB-LL

1

There is no constitutional right to the appointment of counsel in § 1983 cases.

2

Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981) (citation omitted). However, the

3

Ninth Circuit has held that “a court may under ‘exceptional circumstances’ appoint counsel

4

for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d

5

965, 970 (9th Cir. 2009) (quoting Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103

6

(9th Cir. 2004). “When determining whether ‘exceptional circumstances’ exist, a court

7

must consider ‘the likelihood of success on the merits as well as the ability of the petitioner

8

to articulate his claims pro se in light of the complexity of the legal issues involved.’” Id.

9

(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983)). Neither of these

10

considerations is dispositive and instead must be viewed together. Id. (citing Wilborn v.

11

Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

12

Thus far, Plaintiff has submitted several documents without the assistance of legal

13

counsel. In addition to the instant motion, Plaintiff has submitted a complaint [ECF

14

Nos. 1, 2] and a response to an Order to Show Cause [ECF No. 40]. From the Court’s

15

review of these documents, it is clear that Plaintiff is able to articulate the claims of his

16

case, despite Plaintiff’s claims of difficulties due to his mental health and memory issues.

17

Plaintiff’s filings are coherent, focused, and demonstrate an active understanding of the

18

issues presented. Additionally, there is no indication that the issues are overly complex.

19

Although it is too early for the Court to determine Plaintiff’s likelihood of success on the

20

merits, Plaintiff fails to establish the requisite “exceptional circumstances” that would

21

warrant the appointment of counsel. Therefore, the Court finds at this stage of the pleadings

22

Plaintiff has not provided a showing of “exceptional circumstances” justifying the

23

appointment of legal counsel. See Estrada v. Sayre, No. 12-CV-00592-LHK, 2013 WL

24

5073773, at *2 (N.D. Cal. Sept. 13, 2013) (denying Plaintiff’s motion for appointment of

25

counsel for his deposition after finding Plaintiff capable of proceeding with his claims pro

26

se and deeming it too early to evaluate the strength of Plaintiff’s claims). Accordingly,

27

Plaintiff’s motion for appointment of counsel for his deposition is DENIED WITHOUT

28

PREJUDICE.
2
18cv1361-CAB-LL

1

Plaintiff also asks for his deposition to be postponed pending the issuance of the

2

Court’s ruling on the instant motion. ECF No. 48 at 1. On September 6, 2019, the Court

3

granted Defendants’ ex parte application to modify the Scheduling Order, in which they

4

requested moving Plaintiff’s deposition to November 4, 2019. ECF No. 50; see also ECF

5

No. 49 at 1-2. Therefore, the Court finds that Plaintiff’s request to postpone his deposition

6

is now MOOT.

7
8

IT IS SO ORDERED.
Dated: September 6, 2019

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
18cv1361-CAB-LL