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Bacon v. Kolender

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 2, 2007

ARNOLD C. BACON, JR., PLAINTIFF,
v.
WILLIAM B. KOLENDER ET AL., DEFENDANTS.

The opinion of the court was delivered by: Peter C. Lewis U.S. Magistrate Judge United States District Court

ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL (Doc. 92)

Now before the Court is Plaintiff's Motion for Appointment of Counsel. (Doc. 92.) This is the second time that Plaintiff has requested the appointment of counsel to assist him in prosecuting this civil action. (See Doc. 53.)

The Constitution provides no right to appointment of counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the 'likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.'

Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

Here, Plaintiff has been able to articulate adequately the factual basis of his complaint, has survived a summary judgment motion, and has brought his case to the trial stage. Under these circumstances, the Court DENIES Plaintiff's request without prejudice, as neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell,935 F.2d at 1017.

Plaintiff's Motion for Appointment of Counsel is DENIED.

IT IS SO ORDERED.

20071102

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