McNeil v. San Diego Sheriffs

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES R. MCNEIL, Case No.: 23-CV-2199 JLS (BLM) CDCR #BV9170, 12 ORDER DENYING MOTION FOR Plaintiff, 13 APPOINTMENT OF COUNSEL v. 14 (ECF No. 4) SAN DIEGO SHERIFFS; NURSE #1; 15 NURSE #2, 16 Defendants. 17 18 On November 29, 2023, Plaintiff James McNeil (“Plaintiff” of “McNeil”)—a state 19 inmate proceeding pro se—filed a civil rights action pursuant to 42 U.S.C. § 1983, along 20 with an application to proceed in forma pauperis (“IFP”). See ECF Nos. 1, 2. In its 21 December 14, 2023 Order (the “Order,” ECF No. 3), the Court denied McNeil’s IFP 22 motion and dismissed the case pursuant to 28 U.S.C. § 1915(g) because Plaintiff has had 23 at least six prior civil actions dismissed on the grounds that they were frivolous, malicious, 24 or failed to state a claim upon which relief may be granted. See generally Order. The 25 Court gave Plaintiff forty-five days to submit the filing fee. Id. at 5. Plaintiff has now filed 26 a Motion for Appointment of Counsel (“Mot.,” ECF No. 4). 27 / / / 28 / / / 1 MOTION FOR APPOINTMENT OF COUNSEL 2 In his Motion, Plaintiff states that he requires counsel because he is “extremely 3 traumatized” and the unnamed defendants “need to be held responsible for their actions.” 4 Mot. at 1. He further states he has had previous civil suites dismissed because he did not 5 have the assistance of counsel. Id. at 2. 6 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Soc. 7 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). And 8 while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to “request” that 9 an attorney represent an indigent civil litigant, this discretion may be exercised only under 10 “exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 11 (9th Cir. 2004); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding 12 of exceptional circumstances requires the Court “to consider whether there is a ‘likelihood 13 of success on the merits’ and whether ‘the prisoner is unable to articulate his claims in light 14 of the complexity of the legal issues involved.’” Harrington v. Scribner, 785 F.3d 1299, 15 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970). 16 Here, Plaintiff has failed to demonstrate a likelihood of success or the legal 17 complexity required to support the appointment of pro bono counsel pursuant to 28 U.S.C. 18 § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer, 560 F.3d at 970. First, as discussed 19 in the Order, Plaintiff’s case cannot proceed until he pays the required filing fee. 20 See generally Order. There is thus nothing for an attorney to do at this stage in the 21 proceedings. Further, while Plaintiff may not be formally trained in the law, he appears 22 capable of legibly articulating the facts and circumstances relevant to his claims—which 23 are not legally “complex.” Agyeman, 390 F.3d at 1103. Finally, to the extent Plaintiff 24 asserts that his detention makes counsel necessary, a lack of legal training and limited 25 access to the law library are issues common to many prisoners and do not amount to 26 exceptional circumstances. See, e.g., Wood v. Housewright, 900 F.2d 1332, 1335–36 27 (9th Cir. 1990). Accordingly, the Court finds no “exceptional circumstances” currently 28 exist. 1 CONCLUSION 2 For the reasons above, the Court DENIES Plaintiff's Motion for Appointment of 3 ||Counsel (ECF No. 4) without prejudice. The Court reminds Plaintiff that to proceed, he 4 pay the $402 civil filing on or before January 30, 2024, or the Court will enter a 5 judgment of dismissal. 6 IT IS SO ORDERED. 7 ||Dated: January 16, 2024 jae L. Lo memeaite- g on. Janis L. Sammartino 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28