The opinion of the court was delivered by: Judge Moskowitz
ORDER DENYING PLAINTIFF'S SECOND REQUEST FOR APPOINTMENT OF COUNSEL OR, ALTERNATIVELY, MOTION FOR RECONSIDERATION [ECF NO. 28]
Plaintiff William Cecil Thornton, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on July 28, 2010, pursuant to 42 U.S.C. § 1983 [ECF Nos. 1, 5]. In count one, Thornton alleges that his constitutional rights to due process, freedom of association, and to be free from cruel and unusual punishment were violated when he was not allowed to live with his wife in their home after being released on parole. (Compl. 3, ECF No. 1.) In count two, Plaintiff argues that his rights to be free from cruel and unusual punishment, to due process, and his "interest of liberty" were violated when Plaintiff was assigned to a sex offender parole unit in California based on his out-of-state criminal record. (Id. at 4.) Finally, in count three, Thornton alleges his right to equal protection of the laws was violated because he was discriminated against. (Id. at 4-5.) Specifically, he complains that he was "banished" from moving back in with his wife in their home because he was "told it was not incompliance with Proposition 83 or California Penal Code § 3003.5." (Id. at 5 (citation omitted).) But another sex offender assigned to the same parole unit started an intimate relationship with Thornton's wife and was permitted to move into the same home with her, even though Plaintiff was prohibited from doing so. (Id.)
On November 12, 2010, Plaintiff filed his second request for court-appointed counsel. (Pl.'s Second Req. Appointment Counsel 1-2, ECF No. 28.) His first request for appointed counsel was filed on August 25, 2010. (Mot. Appointment Counsel 1-3, ECF No. 7.) The Court, on October 4, 2010, denied Plaintiff's motion [ECF No. 16]. Thornton's second request for appointed counsel should have been brought as a motion for reconsideration of the Court's order denying Plaintiff appointed counsel. See S.D. Cal. Civ. L.R. 7.1(i)(1).
28 U.S.C. § 1915(e)(1) provides, "The court may request an attorney to represent any person unable to afford counsel." 28 U.S.C.A. § 1915(e)(1) (West 2010). But "it is well-established that there is generally no constitutional right to counsel in civil cases." United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citing Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994)). There is also no constitutional right to a court-appointed attorney in § 1983 claims. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); accord Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998). Federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States Dist. Ct., 490 U.S. 296, 310 (1989) (discussing § 1915(d)); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir.1995).
Nevertheless, district courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1), to request attorney representation for indigent civil litigants upon a showing of exceptional circumstances. See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 824 (9th Cir. 1989) ("Appointment of counsel in civil matters in the Ninth Circuit is restricted to 'exceptional circumstances'") (quotation omitted). "A finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims 'in light of the complexity of the legal issues involved.'" Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). "'Neither of these factors is dispositive and both must be viewed together before reaching a decision.'" Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1331). //
Case 3:10-cv-01583-RBB Document 47 Filed 01/11/11 Page 4 of 15
A. Plaintiff's First Motion for Appointment of Counsel
On August 25, 2010, Thornton filed a Motion for Appointment of Counsel [ECF No. 7]. In support of his request, Plaintiff asserted the following: (1) He is unable to afford an attorney; (2) his imprisonment limits his ability to litigate; (3) the issues in this case are complex and require significant research; (4) Thornton has limited law library access and knowledge of the law; and (5) a trial will likely involve conflicting testimony and legal issues. (Mot. Appointment Counsel 2-3, ECF No. 7.) On October 4, 2010, this Court issued an Order Denying Plaintiff's Motion for Appointment of Counsel [ECF No. 16]. The Court stated that Thornton "failed to demonstrate either a likelihood of success on the merits or an inability to represent himself (beyond the ordinary burdens encountered by prisoners representing themselves pro se) . . . ." (Order Den. Pl.'s Mot. Appointment Counsel 10, ECF No. 16.)
On November 1, 2010, Thornton filed a notice of appeal of the denial of his request for appointment of counsel [ECF No. 25]. The notice of appeal was received by the Clerk of Court for the Ninth Circuit and was assigned docket number 10-56733 [ECF No. 26]. The Ninth Circuit issued a Time Schedule Order that same day [ECF No. 27]. On November 12, 2010, while his appeal was pending, Plaintiff filed his Second Request for Appointment of Counsel with the district court [ECF No. 28].
Then, on December 9, 2010, Thornton filed with this Court an Ex Parte Application to Stay Proceedings Until Ninth Circuit Ruling on Denial of Appointment of Counsel [ECF No. 40]. On December 10, 2010, the Ninth Circuit dismissed the appeal for lack of jurisdiction, stating that a denial of appointment of counsel in civil cases is not appealable. Thornton v. Schwarzenegger, No. 10-56733 (9th Cir. Dec. 10, 2010) (order) (citing 28 U.S.C. § 1291 (West 2010); Wilborn, 789 F.2d 1328) [ECF No. 41]. That same day, this Court issued an Order denying as moot Plaintiff's request to stay the proceedings. (Mins., Dec. 10, 2010, ECF No. 42.)
B. Plaintiff's Second Motion for Appointment of Counsel
In support of his second request for court-appointed counsel, filed on November 12, 2010, Plaintiff asserts the following: (1) He is unable to afford an attorney; (2) his imprisonment limits his ability to litigate; (3) the issues in this case are complex and require significant research; (4) Thornton has restricted ability to make photocopies and access legal material in the law library, and he has limited knowledge of the law; (5) Plaintiff has attempted but failed to secure counsel; and (6) a trial will likely involve conflicting testimony and legal issues. (Pl.'s Second Req. Appointment Counsel 1-2, ECF No. 28.) Thornton lists ...