United States District Court, S.D. California
ORDER DENYING MOTION TO APPOINT COUNSEL (ECF NOS. 37,
JANIS L. SAMMARTINO, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff David Vincent Carson's
Motion to Appoint Counsel, (ECF No. 37). Plaintiff seeks
appointment of counsel to assist him in this matter.
(Id.) Plaintiff argues that “[t]he sheer
number of claims and defendants makes this a factually
complex case.” (Id. at 5.) He also contends
that he will have to present medical expert witnesses at
trial and that he will be unable to locate or interview
potential inmate witnesses who have been transferred to
different institutions. (Id.) Plaintiff further
argues that he has no legal training and this case presents
complex legal issues. (Id. at 6.) Thus, Plaintiff
moves for appointment of counsel.
is no constitutional right to counsel in a civil case.
Lassiter v. Dep't of Social Servs. of Durham
Cnty., 452 U.S. 18, 25 (1981). While under 28 U.S.C.
§ 1915(e)(1), district courts have some limited
discretion to “request” that an attorney
represent an indigent civil litigant, Agyeman v. Corr.
Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), this
discretion is rarely exercised and only under
“exceptional circumstances.” Id.;
see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
Cir. 1991). A finding of exceptional circumstances requires
“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.'” Agyeman, 390 F.3d at 1103
(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331
(9th Cir. 1986)).
does not meet either element to demonstrate
“exceptional circumstances.” First, Plaintiff has
not demonstrated his likelihood of success on the merits.
Plaintiff states his “allegations, if proved, clearly
would establish a constitutional violation.” (ECF No.
37, at 6.) Plaintiff's qualifying language-“if
proved”-is the lynchpin of his entire case. Anyone can
allege a constitutional violation, what matters in evaluating
the likelihood of success is proving those allegations.
Plaintiff's motion does not address the merits of his
claims, but rather concludes that he has a meritorious claim
on its face. On August 3, 2017, the Court adopted Judge
Major's Report and Recommendation, granted
Defendants' motion to dismiss, and dismissed
Plaintiff's Complaint. (ECF No. 27.) Plaintiff has filed
a First Amended Complaint and Defendants have answered.
Because Plaintiff's claims were previously dismissed and
his amended claims have not been re-evaluated by the Court,
the likelihood of Plaintiff s success on the merits in this
case is not yet clear.
the pleadings and motions filed by Plaintiff to date
demonstrate that while Plaintiff may not be a trained in law,
he is capable of legibly articulating the facts and
circumstances relevant to his claims, which are typical,
straightforward, and not legally “complex.”
Agyeman, 390 F.3d at 1103. Therefore, neither the
interests of justice nor any exceptional circumstances
warrant the appointment of counsel in this case at this time.
LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987);
see Terrell, 935 F.2d at 1017. Plaintiff may, of
course, re-apply should his case meet the “exceptional
circumstances” outlined above.
the Court DENIES WITHOUT PREJUDICE Plaintiffs Motion to
Appoint Counsel, (ECF No. 37), and Plaintiffs
“supplemental” Motion, (ECF No. 42).
IS SO ORDERED.
 After he filed his first Motion to
Appoint Counsel, Plaintiff filed a Motion for
Renewal/Reconsideration of Motion for Appointment of Counsel
Currently in Abeyance/Undecided. (ECF No. 42.) Because the
Court has a duty to construe pro se filing liberally, see
Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027
n.1 (9th Cir. 1985)), the Court considers the filing to be a
supplemental motion. The Court considers Plaintiff's
arguments in both motions in reaching its conclusion.
“supplemental” motion, (ECF No. 42), appears to
incorporate Defendants' discovery responses as evidence
that he is likely to prevail on the merits. (See
id., Ex. C, at 24 (Defendant Larocco's Responses to
Plaintiff's First Set of Requests for Admissions).)
Plaintiff is essentially asking the Court to make findings of
fact and conclusions of law in his favor prior to him
bringing, for example, a motion for summary judgment. ...