United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL (Dkt. No. 52)
NITA L. STORMES, Magistrate Judge.
Plaintiff James Eusse, Jr., a California prisoner proceeding pro se and in forma pauperis, commenced this civil rights action pursuant to 18 U.S.C. § 1983 on April 16, 2013. (Dkt. No. 1). Presently pending before the Court is Plaintiff's Motion for Appointment of Counsel. (Dkt. No. 52).
Plaintiff asserts he is entitled to appointment of counsel on the grounds that: (1) he is "unable to afford counsel;" (2) "the issues involved in this case are complex;" (3) his family has contacted eight attorneys, but they all declined to represent him; (4) he "has a limited knowledge of the law;" (5) "Defendants have objected to providing key evidence to [his] case;" and (6) Defendants are withholding "key evidence" as confidential and undiscoverable. (Dkt. No. 52 at 1-2). For the reasons set forth below, the Court DENIES WITHOUT PREJUDICE Plaintiff's motion for appointment of counsel.
I. LEGAL STANDARD
There is no constitutional right to be represented by counsel in a civil action. Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). The court may, however, request an attorney to represent an indigent civil litigant upon a showing of "exceptional circumstances." 28 U.S.C. § 1915(e)(1); Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). "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.'" Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Neither of these factors are dispositive, and they must be considered together when determining whether to appoint counsel. Wilborn, 789 F.2d at 1331.
A. Plaintiff's Indigence And Efforts To Obtain Counsel
The Ninth Circuit requires indigent plaintiffs to make a reasonably diligent effort to secure counsel on their own before obtaining court-appointed counsel in the employment discrimination context. Bradshaw v. Zoological Soc'y of San Diego, 662 F.2d 1301, 1319 (9th Cir. 1981). A number of district courts have extended this requirement to requests for appointment of counsel pursuant to § 1915(d), such that plaintiffs must show: (1) they are indigent; and (2) they made a "reasonably diligent effort" to obtain counsel before the court will appoint counsel on their behalf. See, e.g., Bailey v. Lawford, 835 F.Supp. 550, 552 (S.D. Cal. 1993). A plaintiff satisfies the "reasonably diligent effort" requirement by doing "all that may reasonably be expected of him[, ]" but he need not "exhaust the legal directory." Id.
This Court acknowledged Plaintiff's indigence when it granted Plaintiff's motion for leave to proceed in forma pauperis . (Dkt. No. 6). Additionally, Plaintiff and his family have contacted eight attorneys, all of whom declined to represent Plaintiff in this matter. (Dkt. No. 52 at 1). Thus, Plaintiff is indigent and has made a "reasonably diligent effort" to secure counsel for himself. The Court next turns to whether Plaintiff has made a showing of exceptional circumstances to warrant appointment of counsel.
B. Exceptional Circumstances
The Court may appoint counsel to represent an indigent litigant upon a showing of "exceptional circumstances, " considering both the litigant's likelihood of success on the merits, as well as his ability to articulate his claims pro se. Wilborn, 789 F.2d at 1331. However, Plaintiff has not made such a showing, and the Court declines to appoint counsel at this time.
1. Likelihood of Success on the Merits
If a plaintiff does not provide evidence of his likelihood of success at trial, he fails the first factor of the Wilborn test. Bailey, 835 F.Supp. at 552. Here, Plaintiff has clearly articulated his claims, but he has not provided any evidence aside from his own assertions regarding the likelihood of success on the merits. Thus, the Court cannot determine the likelihood that Plaintiff will succeed at trial, and Plaintiff fails to satisfy the first Wilborn factor. However, neither of the Wilborn factors are dispositive, so the Court must ...