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Nagast v. Metropolitan Transit System

United States District Court, Ninth Circuit

September 4, 2013

KEBRA NAGAST, Plaintiff,
v.
METROPOLITAN TRANSIT SYSTEM; SGT. EDWARDS; SGT. ZAMORA; OFC. ALAMILLO; and DOES 1-10, Defendants.

ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING REVISED BRIEFING SCHEDULE [Dkt. No. 17]

GONZALO P. CURIEL, District Judge.

Pending before the Court is Plaintiff's Motion for Appointment of Counsel. For the following reasons, the Court DENIES Plaintiff's motion and sets the REVISED BRIEFING SCHEDULE for Defendants' motion to dismiss.

I. MOTION FOR APPOINTMENT OF COUNSEL

On July 9, 2013, Kebra Nagast ("Plaintiff") filed a Motion for Appointment of Counsel. (Dkt No. 17.) Plaintiff maintains that mental disability and insufficient legal knowledge impede the ability to proceed pro se. (Dkt. No. 17 at 2.)

On August 1, 2013, Defendants San Diego Metropolitan System, Code Compliance Inspector Alamillo and Code Compliance Inspector Edwards ("Defendants") filed an Opposition to Plaintiff's motion. (Dkt. No. 18.) Defendants assert that Plaintiff fails to demonstrate a substantive legal claim that could successfully circumvent statutory and qualified immunities of the Defendants and further fails to establish a loss of personal liberty or fundamental property rights if no appointment is made. (Dkt. No. 18 at 2-5.)

Under 28 U.S.C. § 1915(e)(1), a district court has discretion to ask counsel to represent an indigent plaintiff. See Solis v. County of Los Angeles, 514 F.3e 1101, 1103 (9th Cir. 2004). However, exigent circumstances must exist for the court to exercise such discretion, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir 1991), since civil proceedings do not yield an absolute right to counsel. See Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). Exigent circumstances are indicated by consideration of both the likely success of the Plaintiff's claim and the Plaintiff's capability to effectively communicate complex legal issues involved, neither of which, alone, are dispositive. See Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989); Terrell, 935 F.2d at 1017.

In the present proceeding, although Plaintiff states an inability to properly represent himself due to mental disability and insufficient legal knowledge, the record shows Plaintiff has the ability to communicate legal issues. For example, Plaintiff has filed an Amended Complaint, exemplifying his ability to articulate allegations against Defendants. Furthermore, Plaintiff fails to illustrate any likelihood of the claims success. Consequently, the Plaintiff has not met the requirements for appointment of counsel under 28 U.S.C. § 1915(e)(1) and the Plaintiff's Motion for Appointment of Counsel must be DENIED WITHOUT PREJUDICE.

II. SETTING REVISED BRIEFING SCHEDULE

The Court observes that Plaintiff has not filed a response to Defendants' Motion to Dismiss, which was ordered to be submitted on or by August 5, 2013. ( See Dkt. Nos. 14, 15.) Defendants have filed a notice of non-opposition to the Motion to Dismiss. (Dkt. No. 19.) Given the Court's denial of Plaintiff's Motion for Appointment of Counsel, the Court hereby grants Plaintiff an additional 21 days to file a responsive pleading. Accordingly, the Court sets the REVISED BRIEFING SCHEDULE: Plaintiff shall file a response on or by Wednesday, October 18, 2013. Any reply shall be filed in or by October 25, 2013.

IT IS SO ORDERED.


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