United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S THIRD AND FOURTH MOTION
FOR APPOINTMENT OF COUNSEL [ECF NOS. 18 AND 19]
Barbara L. Major United States Magistrate Judge
15 and 19, 2016, Plaintiff filed two requests for appointment
of counsel that were accepted by the Court on discrepancy on
July 27, 2016. ECF Nos. 16-19. Plaintiff filed the motions
requesting the appointment of counsel to assist him because
he is (1) entitled to protection under the Americans with
Disabilities Act ("ADA") due to his hearing
problems and a mental disability which makes it difficult for
him "to understand the legal process or legal materials,
" (2) indigent, and (3) unable to find an attorney
willing to assist him. ECF No. 18 at 1 and 19 at 1.
A. 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)).
Allen v. Calderon, 408 F.3d 1150, 1153-54 (9th Cir.
2005), the Ninth Circuit Court of Appeals
explained that a district court must hold a competency
hearing "when substantial evidence of incompetence is
presented." Allen, 408 F.3d at 1153. If a
competency hearing is warranted, the Court may appoint
counsel for the limited purpose of representing the
petitioner at the competency hearing. Id. (citing
Rule 8(c) of the Rules Governing Section 2254 Cases
("p]f an evidentiary hearing is warranted, the judge
must appoint an attorney to represent a petitioner who
qualifies to have counsel appointed under 18 U.S.C. §
3006A")). In determining whether Petitioner has
presented "substantial evidence of incompetence, "
the Court may consider any appropriate evidence including
sworn declarations by Petitioner or other inmates, sworn
declarations or letters from treating or prison psychiatrists
or psychologists, and relevant medical records.
Allen, 408 F.3d at 1151-53.
Court has reviewed the instant motions, the complaint (ECF
No. 1), a motion to proceed in forma pauperis (EC?
No. 2), a previous motion for appointment of counsel (ECF No.
3), a consent to magistrate jurisdiction (ECF Nos. 5 and 6),
a notice of change of address (ECF No. 12), and a second
motion for appointment of counsel (ECF No. 14). From the
Court's review of these documents, it is clear that
Plaintiff is able to articulate the claims of his case
without legal assistance. Under such circumstances, a
district court does not abuse its discretion in denying a
state prisoner's request for appointment of counsel as it
is simply not warranted by the interests of justice. See
LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987)
(affirming district court's denial of request for
appointment of counsel where pleadings demonstrated
petitioner had "a good understanding of the issues and
the ability to present forcefully and coherently his
contentions"). The Court previously denied
Plaintiff's request for counsel [see ECF Nos. 10
and 15] and Plaintiff's current requests do not provide
any new facts justifying such an extraordinary remedy. ECF
Nos. 18-19. 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
unclear if Plaintiff is requesting the appointment of counsel
because he is incompetent due to a mental disability. ECF No.
19 at 1. Plaintiff merely states that he suffers from a
mental disability that makes it difficult to understand the
legal process and legal materials. Id. However, he
does not allege that he currently is suffering from a mental
illness that prevents him from understanding and responding
to court orders or provide any evidence of such incompetency.
Id. Additionally, the Court's review of
Plaintiff's filings in this matter does not support such
a position. Furthermore, while Plaintiff mentions that he
suffers from a hearing disability, he provides no further
details such as how his hearing is compromised or how this
disability impacts his ability to represent himself.
Id. Accordingly, the Court finds the pleadings filed
to date do not establish that Plaintiff currently is
incompetent and requires the appointment of counsel on this
Plaintiff has not alleged the requisite "exceptional
circumstances" at this time or provided any evidence in
support of the appointment of counsel for a competency
hearing, the Court DENIES without prejudice Plaintiff's
request for appointment of counsel.
 In his motion, Plaintiff also asserts
that he has been moved to a new facility and provides the
Court with his updated ...