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Deadmon v. Grannis


August 14, 2008


The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge


[Doc. No. 43]

On May 8, 2006, Plaintiff, a pro se proceeding in forma pauperis, filed a complaint pursuant to 42 U.S.C. § 1983. On August 22, 2006, Defendants filed a motion to dismiss, which the Court denied on January 30, 2007. Defendants then filed an answer on February 16, 2007. On April 9, 2008, Plaintiff filed a motion for appointment of counsel. In support of his motion, Plaintiff argues he lacks the ability to articulate his claims and the issues in his case are particularly complex. Specifically, Plaintiff states he needs appointed counsel to secure an expert witness who can evaluate his medical records. If the Court denies his request for appointed counsel, Plaintiff requests, in the alternative, that an expert witness be appointed. After thorough review of Plaintiff's motion, the Court hereby GRANTS his motion for appointment of counsel.

"[T]here is no absolute right to counsel in civil proceedings." Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Thus, federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).

However, "[t]itle 28 U.S.C. § 1915(e)(1) permits the district court, in its discretion, to 'request an attorney to represent any person unable to afford counsel.'" Solis v. County of Los Angeles, 514 F.3d 946, 958 (9th Cir. 2008) (quoting 28 U.S.C. § 1915(e)(1)); see alsoAgyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Such discretion may be exercised upon a showing of exceptional circumstances. SeeTerrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). "To show exceptional circumstances the litigant must demonstrate the likelihood of success and complexity of the legal issues involved." Burns, 883 F.2d at 823 (citation omitted); Hedges, 32 F.3d at 1363; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). Neither the likelihood of success nor the complexity of the case are dispositive; both must be considered. Terrell, 935 F.2d at 1017; Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

The Court has reviewed the likelihood of success and complexity of Plaintiff's case. There appears to be a medical issue that is too complex for Plaintiff and requires an expert to assist the trier of fact. Based thereon, the Court finds Plaintiff has demonstrated exceptional circumstances that warrant appointment of counsel, and therefore, GRANTS Plaintiff's motion.

The Court has sought representation for Plaintiff through the San Diego Volunteer Lawyer Program ("SDVLP"). The SDVLP has identified and appointed Peter M. Adams, Esq. of Cooley Godward Kronish, LLP, 4401 Eastgate Mall San Diego, CA 92121. His telephone number is (858) 550-6059. The Court orders Mr. Adams to file a Notice of Appearance forthwith and directs him to Civil Local Rule 83.8.

The Court further schedules a Case Management Conference on August 25, 2008 at 10:00 a.m. The conference shall be in person, with attorneys only. Counsel shall contact the Court immediately to reschedule this conference or request that it be a telephonic.



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