Cotton v. Geraci

Opinion

5 6

7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 DARRYL COTTON, Case No. 18-cv-325-BAS-MDD 12 Plaintiff, ORDER DENYING EX PARTE 13 MOTION FOR APPOINTMENT OF COUNSEL 14 v. [ECF No. 13] LARRY GERACI, et al., 15

Defendants. 16

18 Plaintiff Darryl Cotton followed an ex parte motion for reconsideration “re: 19 appointment of counsel and leave to amend complaint.” (ECF No. 13.) The Court 20 previously stayed Plaintiff’s case until resolution of the parallel state action and 21 denied as moot Plaintiff’s motion for appointment of counsel. (ECF No. 7.) The 22 stay has since been lifted. Plaintiff now seeks reconsideration of the order denying 23 his request for counsel and also seeks leave to amend. Although Plaintiff titles the 24 motion as one for reconsideration, the Court will simply evaluate his request for 25 counsel. 26 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. 27 Resolution Tr. Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994). Thus, | || Mallard v. U.S. District Court, 490 U.S. 296, 310 (1989); see also United States v. 2 || $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). 3 Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1) 4 ||to “request” that an attorney represent indigent civil litigants upon a showing of 5 ||“exceptional circumstances.” See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 6 1103 (9th Cir. 2004); accord Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). 7 ||“A finding of the exceptional circumstances of the plaintiff seeking assistance 8 ||requires at least an evaluation of the likelihood of the plaintiff's success on the merits 9 ||and an evaluation of the plaintiff's ability to articulate his claims ‘in light of the 10 ||complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting 11 || Wilborn vy. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. 12 || Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 13 Having reviewed Plaintiff's request, the Court concludes the circumstances 14 || fail to demonstrate “exceptional circumstances” warranting the appointment of 15 ||counsel at this time. First, the case is still in the very early stages and □□□□□□□□□□□ 16 |/success on the merits is unclear. And second, Plaintiff's complaint is extremely 17 detailed and is full of factual allegations. Because Plaintiff states he is going to 18 ||amend his complaint, his ability to articulate his claims is also unclear at this time. 19 || The Court DENIES WITHOUT PREJUDICE Plaintiff's motion for appointment 20 || of counsel. 21 Plaintiff also seeks leave to amend his complaint. A party may amend its 22 pleading “once as a matter of course 21 days after service of a responsive pleading 23 ||or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” 24 Fed. R. Civ. P. 15(a)(1)(B). Plaintiff's complaint has not yet been served, thus, he 25 |/does not need to request permission to amend his complaint and may amend it 26 || pursuant to Federal Rule of Civil Procedure 15(a)(1). 27 IT IS SO ORDERED. 28 DATED: April 15, 2020 / yy liathis (rabaa f