O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JASON LATRELL THOMAS, ) Case No. 2:18-cv-08707-CAS-FFM 11 ) 12 Plaintiff, ) 13 v. ) ) ORDER 14

E. SOLANO, et al. )

15 ) Defendants. ) 16 ) 17 18 19 Plaintiff Jason Latrell Thomas filed this action on October 10, 2018, asserting civil 20 rights claims against a number of prison officials. Dkt. 1. Plaintiff is currently incarcerated 21 and is proceeding pro se. On October 15, 2018, United States Magistrate Judge Frederick 22 F. Mumm dismissed plaintiff’s complaint, with leave to amend, on the grounds that the 23 Eleventh Amendment bars plaintiff’s claims against defendants because plaintiff asserts 24 these claims against defendants in defendants’ official capacities. Dkt. 9. Plaintiff 25 thereafter filed the operative first amended complaint on October 24, 2018. Dkt. 15. 26 On July 25, 2019, plaintiff requested the voluntary assistance of counsel. Dkt. 65. 27 Plaintiff asserted that he “has been found incompetent to stand trial” and that his access to 28 writing materials and the law library has been limited for medical reasons. Id. On August 1 5, 2019, the Magistrate Judge denied this request, determining that “appointment of counsel 2 is not warranted at this time.” Dkt. 66. 3 On August 9, 2019, plaintiff again requested the voluntary assistance of counsel 4 “based on the hardships currently going on and the fact that [p]laintiff has been found 5 incompetent to stand trial.” Dkt. 69 at 3. The Magistrate Judge denied this request on 6 August 15, 2019 “for the reasons previously stated in the Court’s August 5, 2019 . . . Order 7 [.]” Dkt. 70. 8 On October 10, 2019, the Court received from plaintiff a document entitled 9 “Emergency Opposition and Notice of Motion Updating Plaintiff Thomas’s Status and 10 Opposition to Magistrate Judge Denial to Ask an Attorney to Take this Case Pro Bono 11 Without Reimbursement.” Dkt. 76. The Court construes this filing as objections to the 12 Magistrate Judge’s orders denying plaintiff’s requests for counsel pursuant to Rule 72 of 13 the Federal Rules of Civil Procedure.1 See Fed. R. Civ. P. 72(a) (“A party may serve and 14 file objections to the [Magistrate Judge’s nondispositive] order within 14 days after being 15 served with a copy.”).2 16 As a preliminary matter, the Court notes that plaintiff’s objections, filed on October 17 10, 2019, come well after the 14-day objection deadline applicable to the Magistrate 18 Judge’s August 5, 2019 and August 15, 2019 orders. Fed. R. Civ. P. 72(a); C.D. Cal. L.R. 19 72–2.1. Plaintiff’s filing is untimely, even giving plaintiff the benefit of three additional 20 days to object based on the alternative means of service of the orders contemplated by Rule 21 22 23 1 Defendants construe plaintiff’s filing as a motion for reconsideration pursuant to 24 Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. Dkt. 78 at 5–6. 25 2 Local Rule 72–2.1 requires a party objecting to a nondispositive order to file a 26 “motion for review by the assigned District Judge, designating the specific portions of the 27 ruling objected to and stating the grounds for the objection.” C.D. Cal. L.R. 72–2.1. The motion must be filed “within fourteen (14) days of service of a written ruling.” Id. 28 1 6(d). Fed. R. Civ. P. 6(d). However, even considering this matter on the merits, plaintiff 2 fails to demonstrate that he is entitled to the requested relief. 3 “A non-dispositive order entered by a magistrate must be deferred to unless it is 4 ‘clearly erroneous or contrary to law.’” Grimes v. City & Cty. of San Francisco, 951 F.2d 5 236, 241 (9th Cir. 1991) (internal citation omitted). “The clearly erroneous standard 6 applies to a magistrate’s factual findings, and the contrary to law standard applies to the 7 magistrate’s legal conclusions.” Physicians Healthsource Inc v. Masimo Corp., No. 8:14- 8 cv-00001-JVS-ADS, 2019 WL 1966663, at *2 (C.D. Cal. Feb. 27, 2019). “A decision is 9 ‘contrary to law’ if it applies an incorrect legal standard or fails to consider an element of 10 the applicable standard.” Banuelos v. United States, No. 2:15-cv-3273-PA-RAO, 2016 11 WL 7197593, at *1 (C.D. Cal. May 19, 2016). 12 Here, plaintiff contends “that the denial . . . to ask counsel to represent me in this 13 civil action is a denial of justice due to my situation.” Dkt. 76. To the extent that plaintiff 14 challenges the Magistrate Judge’s legal conclusions, the Court finds that the Magistrate 15 Judge’s decision is not “contrary to law.” 16 The Magistrate Judge correctly concluded that “[t]here is no constitutional right to 17 appointed counsel in a civil case.” Dkt. 70 at 1; see also Storseth v. Spellman, 654 F.2d 18 1349, 1353 (9th Cir. 1981) (“there is no constitutional right to appointed counsel for 19 [Section] 1983 claims”). Moreover, the Magistrate Judge properly recognized that “the 20 Court has discretionary power to request an attorney to represent a party unable to afford 21 counsel.” Dkt. 70 at 1; see also 28 U.S.C. § 1915(e)(1) (“The court may request an attorney 22 to represent any person unable to afford counsel.”). 23 Plaintiff specifically invokes Section 1915(e)(1). Dkt. 65. As the Magistrate Judge 24 correctly observed, in considering a request pursuant to Section 1915(e)(1), the Court 25 determines whether “exceptional circumstances” are present, considering both “the 26 likelihood of success on the merits as well as the ability of the petitioner to articulate his 27 claims pro se in light of the complexity of the legal issues involved.” Palmer v. Valdez, 28 560 F.3d 965, 970 (9th Cir. 2009); Dkt. 70 at 2. At this juncture, plaintiff has made an | || insufficient showing that he is either likely to succeed on the merits of his claims or that 2 ||the issues presented are complex. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 3 ||Cir. 1986) (affirming district court’s denial of indigent plaintiffs request for counsel 4 || because, “[a]lthough [plaintiff] may have found it difficult to articulate his claims pro se, 5 ||he has neither demonstrated a likelihood of success on the merits nor shown that the 6 || complexity of the issues involved was sufficient to require designation of counsel.’’). 7 The Court cannot say that the Magistrate Judge’s factual findings are “clearly 8 |lerroneous.” Nor can the Court say that the Magistrate Judge’s legal conclusions are 9 ‘contrary to the law.” Accordingly, plaintiff's objections to the Magistrate Judge’s orders 10 || denying the requests for counsel are OVERRULED and plaintiffs motion is DENIED. 11 IT IS SO ORDERED. 12 . 13 || DATED: November 5, 2019 Altus □□ 14 15 CHRISTINA A. SNYDER 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28

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