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Tyrone Rogers v. G.J. Giurbino; D. Uribe

April 2, 2012

TYRONE ROGERS, CDCR #V-35389,
PLAINTIFF,
v.
G.J. GIURBINO; D. URIBE; P. KUZIL-RUAN; B. NARVIS, DEFENDANTS.



The opinion of the court was delivered by: Hon. Irma E. GONZALEZUnited States District Judge

ORDER DENYING PLAINTIFF'S MOTIONS FOR RECONSIDERATION AND TO APPOINT COUNSEL (ECF Nos. 37, 39)

I. PROCEDURAL HISTORY

On February 14, 2012, the Court granted in part and denied in part a Motion to Dismiss Plaintiff's Second Amended Complaint pursuant to FED.R.CIV.P. 12(b)(6) (ECF No. 33).

Specifically, the Court found Plaintiff failed to state a First or Fourteenth Amendment claim, and failed to allege any claim for relief as to Defendants Giurbino and Uribe. See Feb. 14, 2012 Order at 6-10, 16-17. However, the Court found Plaintiff had sufficiently alleged a Religious Land Use and Institutionalized Persons Act ("RLUIPA") claim against Defendant Kuzil-Ruan, and denied his claim to qualified immunity. Id. at 10-14, 17-21. Accordingly, only Defendant Kuzil-Ruan was directed to file an Answer. Id. at 22.

On March15, 2012, Plaintiff filed a Motion to Appoint Counsel (ECF No. 37) and a Motion seeking reconsideration of the Court's February 14, 2012 Order (ECF No. 38).

II. PLAINTIFF'S MOTION TO APPOINT COUNSEL

Plaintiff requests appointment of counsel pursuant to 18 U.S.C. § 3006A(a)(3)(A) because he is "possibly facing opposition of the Defendants issuing ... requested discover[y] and interrogatories." (Pl.'s Mot. at 2.) Because this provision of the Criminal Justice Act does not apply to a prisoner who is not challenging either the imposition or execution of his sentence, see 18 U.S.C. § 3006(a)(1), and Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) (ECF No. 3), the Court liberally construes his request to arise under 28 U.S.C. § 1915(e)(1). See Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) ("Courts have a duty to construe pro se pleadings liberally, including pro se motions as well as complaints.").

"There is no constitutional right to appointed counsel in a § 1983 action." Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); see also Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) ("[T]here is no absolute right to counsel in civil proceedings.") (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).

Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to "request" that an attorney represent indigent civil litigants upon a showing of "exceptional circumstances."

See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525. "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)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

The Court concedes that any pro se litigant "would be better served with the assistance of counsel." Rand, 113 F.3d at 1525 (citing Wilborn, 789 F.2d at 1331). However, so long as a pro se litigant, like Plaintiff in this case, is able to "articulate his claims against the relative complexity of the matter," the "exceptional circumstances" which might require the appointment of counsel do not exist. Id. (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner "may well have fared better-particularly in the realms of discovery and the securing of expert testimony.").

In this case, the Court finds the RLUIPA claim against Defendant Kuzil-Ruan which has already survived Defendants' Motion to Dismiss is relatively straightforward and involves only one Defendant. In addition, Plaintiff's pleadings and motions in this case demonstrate his understanding of both the procedural and legal issues presented and an ability to articulate facts in support of his claim. Therefore, 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.

III. PLAINTIFF'S MOTION FOR ...


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