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Conetta v. San Diego Unified Port District

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 3, 2009

MICHAEL PATRICK CONETTA, PLAINTIFF,
v.
SAN DIEGO UNIFIED PORT DISTRICT, INCORPORATED, ET AL. DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS ) AND DENYING REQUEST FOR APPOINTMENT OF COUNSEL

Plaintiff, proceeding pro se, filed a complaint pursuant to the Americans with Disabilities Act, a motion to proceed in forma pauperis ("IFP Motion") and a request for appointment of counsel. For the reasons which follow, the IFP Motion is GRANTED and the request for appointment of counsel is DENIED.

All parties instituting any civil action, suit or proceeding in a United States District Court must pay a filing fee. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the fee only if the plaintiff is granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Plaintiff's declaration shows he has insufficient income and assets to pay the filing fee. Accordingly, Plaintiff's IFP Motion is GRANTED.

Plaintiff also requested appointment of counsel to represent him in this case. The Constitution provides no right to appointment of counsel in a civil case. See Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 25 (1981). Under 28 U.S.C. § 1915(e)(1), the court may appoint counsel 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 petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Id. (internal quotation marks and citation omitted).

The allegations in Plaintiff's complaint demonstrate he has sufficient writing ability and legal knowledge to articulate his claim. The facts and issues raised are not particularly complex. At this early stage of the case, the likelihood of success on the merits is uncertain. Based on the foregoing, Plaintiff's request for appointment of counsel is DENIED.

IT IS SO ORDERED.

20090903

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