McGee v. The City of Hercules

Opinion

1 2 3 6 7 ANTHONY MCGEE, Case No. 23-cv-05161-TSH

8 Plaintiff, ORDER DENYING REQUEST TO 9 v. APPOINT COUNSEL

10 THE CITY OF HERCULES, et al., Re: Dkt. No. 40 11 Defendants.

12 13 On July 29, 2024, the Court stayed this matter pending the conclusion of supervised 14 release proceedings in United States v. McGee, 3:12-cr-00052-EMC. ECF No. 35. Plaintiff has 15 now filed a motion for appointment of counsel, stating the proceedings in 12-0052 have 16 concluded, he is serving a twelve-month sentence, and he would like the Court to appoint counsel 17 “to settle the case” due to the “unavailability of [his] presence until at least April of next year.” 18 ECF No. 40. 19 Generally, a person has no right to counsel in civil actions. Palmer v. Valdez, 560 F.3d 20 965, 970 (9th Cir. 2009) (citation omitted). However, a court may under “exceptional 21 circumstances” appoint counsel for indigent civil litigants. Id. (citation omitted). To obtain 22 appointment of pro bono counsel, a litigant must be proceeding in forma pauperis and lack the 23 financial resources to retain counsel. Id. “When determining whether ‘exceptional circumstances’ 24 exist, a court considers ‘the likelihood of success on the merits as well as the ability of the 25 petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.’” 26 Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Neither of these 27 considerations is dispositive; rather, they must be viewed together. Id. (citation omitted). 1 reasonably diligent effort to secure counsel.” Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 2 1993) (citing Bradshaw v. Zoological Soc’y of San Diego, 662 F.2d 1301, 1319 (9th Cir. 1981)). 3 At this early stage in the litigation, the likelihood of Plaintiffs success on the merits is 4 || unclear. Further, Plaintiff has thus far sufficiently articulated his claims pro se and the issues do 5 not appear to be unduly complex. The Court also notes that Plaintiff is actively prosecuting his 6 || other cases pending in this District without representation, including filings as recently as 7 September 18. See Mot. to Amend, ECF No. 19, McGee v. Alameda County Sheriff's Department, 8 3:24-cv-04588-LB. Accordingly, the Court finds exceptional circumstances do not exist for 9 appointment of counsel, and Plaintiff’s request is therefore DENIED. 10 The stay in this case remains in effect. If Plaintiff wishes to prosecute this case on his 11 own, he may so inform the Court and request that the stay be lifted.

14 Dated: September 23, 2024 ALA\. | □ THOMAS S. HIXSON = 16 United States Magistrate Judge

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