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Mayweathers v. Hickman


September 10, 2008


The opinion of the court was delivered by: Cathy Ann Bencivengo United States Magistrate Judge


[Doc. No. 126.]

Plaintiff Karluk Khan Mayweathers, a state prisoner proceeding pro se, brought this action for violations his civil rights under 42 U.S.C. § 1983. On September 10, 2008, Plaintiff submitted a renewed motion for appointment of counsel. For the reasons set forth below, Plaintiff's motion is DENIED.

Plaintiff has not made the showing required for appointment of counsel in civil cases. An indigent's right to appointed counsel has been recognized to exist "only where the litigant may lose his physical liberty if he loses the litigation." Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 25 (1981). Appointment of counsel in proceedings in forma pauperis is governed by 28 U.S.C. § 1915(d), which "confers on a district court the discretion to designate counsel to represent an indigent civil litigant." Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (internal citation omitted).

"The court may appoint counsel under section 1915(d) only under 'exceptional circumstances.'" Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (internal citation omitted). "A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Id. (internal citations omitted). "Neither of these factors is dispositive and both must be viewed together before reaching a decision." Id. (internal citation omitted).

Here, Plaintiff fails to demonstrate a likelihood of success on the merits. Indeed, on May 16, 2008, this Court issued a Report and Recommendation on Defendants' motion for summary judgment, in which it recommended Defendants' motion be granted. Therefore, the likelihood of success on the merits is poor.

In regards to the second prong of the analysis, Plaintiff puts forth the same arguments as in his second motion for appointment of counsel, which this Court denied on May 16, 2008. Specifically, he claims the issues are complex and may require the appointment or use of expert witnesses. He also claims prison library access is limited. However, these factors do not point to the presence of exceptional circumstances, but are instead indicative of difficulties which any incarcerated litigant would have in proceeding pro se. Plaintiff has shown no lack of ability to articulate his claims pro se. He has filed several amended pleadings, with the current operative pleading being his Third Amended Complaint, as well as numerous motions. His filings are fairly organized and present the issues and arguments with adequate clarity and efficiency.

Furthermore, pro se litigants are afforded some leniency to compensate for their lack of legal training. "In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford plaintiff the benefit of any doubt." Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal citation omitted). This requirement of liberality applies to motions. See Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (internal citations omitted). Therefore Plaintiff may be assured that his pro se status will be taken into account by the Court reviewing his papers.

Accordingly, based on the foregoing, Plaintiff's motion for appointment of counsel is DENIED without prejudice.



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