Yablonsky v. California Department of Correction & Rehabilitation ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 JOHN HENRY YABLONSKY, Case No.: 18cv1122-CAB-AGS 10 Plaintiff, ORDER DENYING WITHOUT 11 vs. PREJUDICE MOTION FOR APPOINTMENT OF COUNSEL [Doc. 12 No. 56] 13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 14 REHABILITATION, et al. 15 Defendants. 16 17 18 On August 24, 2020, Plaintiff filed a motion requesting appointment of counsel. 19 [Doc. No. 56.] Plaintiff asks the Court to appoint counsel for him because he is 20 incarcerated, the issues in the case are complex, and he has limited access to a law library 21 due to Covid 19 restrictions. [Doc. No. 56.] 22 However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. 23 of Social Servs, 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 24 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to 25 “request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of 26 America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion is exercised only in 27 “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 28 Cir. 1991). A finding of exceptional circumstances requires the Court “to consider 1 || whether there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is 2 unable to articulate his claims in light of the complexity of the legal issues involved.’” 3 || Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d 4 || at 970). 5 The Court denies Plaintiff's request without prejudice at this time because nothing 6 ||in either his First Amended Complaint (“FAC”) or his motion requesting appointment of 7 || counsel suggests he is incapable of articulating the factual basis for his claims. /d. In fact, 8 || Plaintiff has articulated many coherent arguments when filing motions and responses to 9 ||motions. See e.g. Doc. Nos. 21, 23, 29, 35, 38, 46, 51.] 10 At the same time, Plaintiff's FAC (as amended by court order), by itself, does not 11 || yet demonstrate a “likelihood” of success on the merits. Jd. Therefore, the Court finds no 12 ||““exceptional circumstances” exist to justify the appointment of counsel at this time. See, 13 Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of counsel 14 || where prisoner was able to articulate his inadequate medical care claims in light of the 15 ||}complexity of the issues involved, but found unlikely to succeed on the merits). 16 Should Plaintiff require an extension of time to file a particular pleading due to 17 ||Covid 19 restrictions, he knows how to file such a motion requesting that specific 18 |/extension. See e.g. Doc. No. 19. 19 CONCLUSION 20 For the reasons set forth above, the motion requesting appointment of counsel is 21 || DENIED WITHOUT PREJUDICE. IT ISSO ORDERED. 22 ||Dated: August 27, 2020 € 23 Hon. Cathy Ann Bencivengo 24 United States District Judge 25 26 27 28