Jones v. Pollard ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 HENRY A. JONES, JR., Case No. 21-cv-162-MMA (RBM) 11 Plaintiff, ORDER DENYING MOTION TO 12 v. APPOINT COUNSEL 13 MARCUS POLLARD, et al., [Doc. No. 24] 14 Defendants. 15 16 On January 27, 2021, Plaintiff Henry A. Jones, Jr. (“Plaintiff”), a state prisoner 17 proceeding pro se, filed a civil rights complaint against Marcus Pollard and Kathleen 18 Allison (“Defendants”) pursuant to 42 U.S.C. § 1983 (the “Complaint”). See Doc. No. 1. 19 On February 4, 2021, the Court denied Plaintiff’s motion to proceed in forma pauperis on 20 the basis he has had at least three prior prisoner civil actions dismissed on the grounds 21 that they were frivolous, malicious, or failed to state a claim upon which relief may be 22 granted. See Doc. No. 5. Plaintiff subsequently paid the filing fee. See Doc. No. 9. 23 On June 16, 2021, the Court screened the Complaint pursuant to 28 U.S.C. 24 § 1915A and found that Plaintiff met the “low threshold” to survive dismissal See Doc. 25 No. 10 at 3. The Court directed the Clerk of Court to issue a Summons and informed 26 Plaintiff of the requirements for service of the Summons and Complaint. See id. at 5. 27 Pursuant to Federal Rule of Civil Procedure 4(m), Plaintiff’s 90-day window to timely 28 serve the Summons and Complaint—which had been tolled while his Complaint was in 1 screening and began to run on the date of the screening Order, June 16, 2021—was set to 2 expire on September 14, 2021. See Fed. R. Civ. P. 4(m). On July 28, 2021, the Court 3 granted Plaintiff’s motion to extend the time to serve the Summons and Complaint and 4 extended the deadline to October 29, 2021. 5 On August 20, 2021, Plaintiff filed a motion to direct the U.S. Marshal Service to 6 effect service of the Summons and Complaint on the Defendants. See Doc. No. 21. 7 However, because Plaintiff is not authorized to proceed in forma pauperis, he is not 8 entitled to service of process by the U.S. Marshal Service. See Doc. No. 22. 9 Accordingly, the Court denied his motion. See id. Plaintiff now moves for appointment 10 of counsel. See Doc. No. 24. 11 There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of 12 Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 13 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to 14 “request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of 15 America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion may be exercised only 16 under “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 17 (9th Cir. 1991). A finding of exceptional circumstances requires the Court “to consider 18 whether there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is 19 unable to articulate his claims in light of the complexity of the legal issues involved.’” 20 Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 21 970). 22 Plaintiff explains that he has “recurrent episodes of mental health concerns” and 23 “can no longer focus on stressful legal litigation[].” Doc. No. 24 at 1. However, he fails 24 to demonstrate the likelihood of success or the legal complexity required to support the 25 appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell, 935 26 F.3d at 1017; Palmer, 560 F.3d at 970. The Court has found his pleadings to date 27 sufficient to survive the mandatory screening required by 28 U.S.C. § 1915(e)(2) and 28 § 1915A(b), and thus, Plaintiff appears capable of articulating a factual basis for his 1 ||}claims. Moreover, his Eighth Amendment claim is not legally “complex.” Agyeman, 2 F.3d at 1103. Therefore, neither the interests of justice nor any exceptional 3 || circumstances warrant appointment of counsel at this time. See LaMere v. Risley, 827 4 || F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. Accordingly, the Court 5 || DENIES Plaintiff's motion without prejudice. 6 To the extent Plaintiff seeks assistance from counsel to properly serve Defendants, 7 Court DIRECTS the Clerk of Court to mail Plaintiff, along with a copy of this Order, 8 blank Waiver of Service of Summons form. 9 IT IS SO ORDERED. 10 || Dated: October 7, 2021 11 [Mths -/ ly Lor 12 HON. MICHAEL M. ANELLO 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28