Cavazos v. Garilaso
- Proceeding
- district
- Area
- civil
- Panel
- John A. Houston (author)
Analysis
Plaintiff Robert Cavazos, a pro se prisoner, moved for the appointment of counsel in his civil rights action. The court denied the motion without prejudice, finding that the plaintiff failed to demonstrate exceptional circumstances because he did not address the likelihood of success on the merits and had already sufficiently articulated his claims.
| What the court decided | The model |
|---|---|
Motion for appointment of counsel denied“IT IS HEREBY ORDERED Plaintiffs motion for appointment of counsel is DENIED without prejudice.” | agree with court The court correctly applied the Ninth Circuit's 'exceptional circumstances' test for appointing counsel in civil cases. The order notes that the plaintiff failed to address the likelihood of success on the merits, a required component of the test, and observed that the plaintiff had already sufficiently articulated his claims. Denial without prejudice is appropriate as the plaintiff may renew the motion if circumstances change or if he can later demonstrate the required factors. |
The order itself: sound — The order correctly identifies the applicable legal standard for appointing counsel in civil cases and applies it to the facts presented. It notes the plaintiff's failure to address the likelihood of success on the merits and observes that the plaintiff has already sufficiently articulated his claims, which supports the conclusion that exceptional circumstances do not exist. The reasoning is sound and supported by the cited authorities.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT CAVAZOS, Case No.: 3:21-cv-01156-JAH-LR 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR APPOINTMENT OF COUNSEL 14 GARILASO, et al., 15 Defendants. [ECF NO. 58] 16 17 Pending before the Court is Plaintiff Robert Cavazos’ (“Plaintiff”) motion for 18 appointment of counsel. (ECF No. 58). There is no constitutional right to be represented 19 by counsel in a civil action. See Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th 20 Cir. 1994); see also Hernandez v. Whiting, 881 F.2d 768, 770-71 (9th Cir. 1989). However, 21 under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for 22 indigent persons under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 23 1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation of 24 both the ‘likelihood of success on the merits and the ability of the plaintiff to articulate his 25 claims pro se in light of the complexity of the legal issues involved.’ Neither of these 26 issues is dispositive and both must be viewed together before reaching a decision.” Id. 27 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 28 Plaintiff contends he is in poor mental health, has limited library access, and limited | to prepare his case. (ECF No. 58). The Court has reviewed the record in the matter 2 ||and notes the claims asserted by Plaintiff are not particularly complex or novel, and 3 Plaintiff has sufficiently articulated his First and Eighth Amendment claims against 4 || Defendants arising from several events between 2019 and 2021 to support plausible claims 5 || for relief. 6 In addition, Plaintiff does not address the likelihood of success on the merits of his 7 ||claims to support exceptional circumstances. See Harrington v. Scribner, 785 F.3d 1299, 8 (9th Cir. 2015); see also Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) 9 (affirming denial of counsel where prisoner could articulate his claims in light of the 10 ||}complexity of the issues involved, but did not show likelihood of succeed on the merits); 11 || Dickey v. Strayhorn, Civil Case No. 3:17-cv-00546-JLS-JLB, 2017 WL 3118797, at *1 12 ||(S.D. Cal. July 21, 2017), reconsideration denied, Civil Case No. 3:17-cv-00546-JLS-JLB, 13 }}2017 WL 4271975 at *1 (S.D. Cal. Sept. 26, 2017) (“To demonstrate that he has a 14 || likelihood of success at trial, Plaintiff must do more than merely allege that one of his 15 |/constitutional rights was violated. He must provide evidence to the effect that he has a 16 || likelihood of success on the merits of his allegations.”); Torbert v. Gore, Civil Case No. 17 ||3:14-cv-02991-BEN-NLS, 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016) (“A plaintiff 18 || that provides no evidence of his likelihood of success at trial fails to satisfy the first factor 19 || of the [exceptional circumstances] test.”). The Court finds no exceptional circumstances 20 || exist to support appointment of counsel at this stage of the proceedings. 21 Accordingly, IT IS HEREBY ORDERED Plaintiffs motion for appointment of 22 counsel is DENIED without prejudice. 23 || DATED: March 29, 2023 yb Mise 25 %6 JO A. HOUSTON” ITED STATES DISTRICT JUDGE 27 28