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Espinoza v. Kellogg

United States District Court, N.D. California

February 28, 2014

CANDE ESPINOZA, Plaintiff,
v.
OFFICER KELLOGG, et al., Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL; DENYING DEFENDANTS' MOTION TO DISMISS; DENYING AS MOOT THEIR MOTION TO STAY DISCOVERY; AND DIRECTING THEM TO FILE A MOTION FOR SUMMARY JUDGMENT

YVONNE GONZALEZ ROGERS, District Judge.

Plaintiff has filed a pro se civil rights action pursuant to 42 U.S.C. § 1983. His motion for leave to proceed in forma pauperis has been granted.

Before the Court are Plaintiff's motion for appointment of counsel, Defendants' motion to dismiss on grounds that Plaintiff has failed to state claims for relief, and their motion to stay discovery pending the resolution of the motion to dismiss.

I. Plaintiff's Motion for Appointment of Counsel

Plaintiff has filed a motion for appointment of counsel. However, there is no constitutional right to counsel in a civil case. Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981). 28 U.S.C. § 1915 confers on a district court only the power to "request" that counsel represent a litigant who is proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1). This does not give the courts the power to make "coercive appointments of counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989).

The Court may ask counsel to represent an indigent litigant under section 1915 only in "exceptional circumstances, " the determination of which requires an evaluation of both (1) the likelihood of success on the merits and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of these factors must be viewed together before reaching a decision on a request for counsel under section 1915. Id. Neither the need for discovery, nor the fact that the pro se litigant would be better served with the assistance of counsel, necessarily qualify the issues involved as complex. Rand, 113 F.3d at 1525 (where plaintiff's pursuit of discovery was comprehensive and focused and his papers were generally articulate and organized, district court did not abuse discretion in denying request for counsel).

Because Plaintiff has adequately presented his claims, there are no exceptional circumstances presented requiring appointment of counsel. Accordingly, Plaintiff's motion for appointment of counsel (Docket No. 10) is DENIED.

II. Defendants' Motion to Dismiss

Defendants' motion to dismiss on grounds that Plaintiff has failed to state claims for relief (Docket No. 14) is DENIED. Plaintiff's allegations, when liberally construed, appear to state claims for relief. Defendants' grounds for dismissal are more properly raised in a motion for summary judgment. Accordingly, the parties shall abide by the briefing schedule outlined below.

CONCLUSION

For the reasons stated above, the Court orders as follows:

1. Plaintiff's motion for appointment of counsel (Docket No. 10) is DENIED. This does not mean, however, that the Court will not consider appointment of counsel at a later juncture in the proceedings; that is, after Defendants have filed their motion for summary judgment. Therefore, Plaintiff may file a renewed motion for the appointment of counsel after Defendants' motion for summary judgment has been filed. If the Court decides that appointment of counsel is warranted at that time, then it can seek volunteer counsel to represent Plaintiff pro bono.

2. Defendants' motion to dismiss on grounds that Plaintiff has failed to state claims for relief (Docket No. 14) is DENIED. The following briefing schedule shall govern motions for summary judgment in this action:

a. Defendants shall file a motion for summary judgment within ninety (90) days from the date this Order is filed. The motion must be supported by adequate factual documentation, must conform in all respects to Federal Rule of Civil Procedure 56, and must include as ...


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