United States District Court, S.D. California
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL AND REQUEST TO SEAL [ECF NO.
Barbara L. Major, United States Magistrate Judge.
26, 2016, Plaintiff filed a request for appointment of
counsel that was accepted by the Court on discrepancy on July
19, 2016. ECF Nos. 13 and 14. Plaintiff requests that the
Court appoint counsel to represent his interests in the
instant matter. Id. at 1. In support, Plaintiff
states that he is (1) indigent, (2) at risk of losing
personal and/or property rights, (3) untrained in the law,
(4) barred from access to the courts in violation of due
process and equal protection in light of his poverty and
incarceration, and (5) “likely to suffer adverse
judgment” without adequate representation and access to
the courts. Id. at 2. Plaintiff further states that
he has a right to the appointment of legal counsel and that
without such he will “continue to suffer deprivations
of constitutional and/or other legal rights as stated
above.” Id. at 3. Finally, Plaintiff cites to
two California state court cases, Yarbrough v. Superior
Court, 39 Cal.3d 197, 702 P.2d 583 (1985) and Payne
v. Superior Court, 17 Cal.3d 908, 553 P.2d 565 (1976) in
support of his position. Id. at 4. For the following
reasons, Plaintiff’s motion is DENIED.
Appointment of Counsel
Constitution provides no right to appointment of counsel in a
civil case unless an indigent litigant may lose his physical
liberty if he loses the litigation. Lassiter v.
Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981).
However, under 28 U.S.C. § 1915(e)(1), courts are
granted discretion to appoint counsel for indigent persons
under “exceptional circumstances.” Agyeman v.
Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004).
A finding of exceptional circumstances demands 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.’” Id. (quoting Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
far, Plaintiff has drafted and submitted several pleadings
and motions without the assistance of counsel. See
Docket. In addition to the instant motion, he has submitted a
complaint (ECF No. 1), a motion to proceed in forma
pauperis (ECF No. 2), a previous motion for appointment
of counsel (ECF No. 3), a consent to magistrate jurisdiction
(ECF Nos. 5 and 6), and a notice of change of address (ECF
No. 12). From the Court’s review of these documents, it
is clear that Plaintiff is able to articulate the claims of
his case. The Court previously denied Plaintiff’s
request for counsel [see ECF No. 10] and
Plaintiff’s current request does not provide any new
facts justifying such an extraordinary remedy. ECF No. 14.
Further, Plaintiff does not demonstrate a likelihood of
success on the merits such that his case should be classified
as an “exceptional circumstance.”
Agyeman, 390 F.3d at 1103; see also
Wilborn, 789 F.2d at 1331. Because Plaintiff has not
alleged the requisite “exceptional circumstances”
at this time, the Court DENIES without prejudice
Plaintiff’s request for appointment of counsel.
Request to Seal
prayer for relief, Plaintiff requests that the Court
“order that all records pertaining to this motion be
sealed subject to inspection only upon order of this court
after a showing of good cause.” ECF No. 14 at 7.
a strong presumption in favor of public access to judicial
records and against sealing. See, Ctr. for Auto Safety v.
Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016)
(stating that "we start with a strong presumption in
favor of access to court records.")(quoting Foltz v.
State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th
Cir. 2003Y); see also Kamakana v. City & County of
Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006).
Accordingly, as stated in Judge Major's chambers rules,
"[a] sealing order may issue only upon a showing that
the information is privileged or protectable under the
law" and the "request must be narrowly tailored to
seek sealing only of the confidential or privileged
material." See Honorable Barbara Lynn Major U.S.
Magistrate Judge Chambers Rules. Here, Plaintiff fails to
tailor his request or explain in any way why the information
contained in the instant motion should be sealed. ECF No. 14.
Additionally, much of the information contained in the
instant motion already appears on the docket unsealed. See
Docket. For example, Plaintiff's previous motions reveal
that he is indigent and seeking the assistance of counsel and
Plaintiff's complaint explains the basis of his claims
and background on the basis of Plaintiff's incarceration.
See ECF Nos. 1-3. Because Plaintiff has failed to demonstrate
good cause for sealing the instant motion and order, and in
light of the Court's presumption in favor of access to
judicial records, Plaintiff's request to seal "all
records pertaining to this motion" is DENIED.
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