Opinion
No. 2:10-cv-00032-KJM-EFB
12-01-2016
JOHN CLINT DRAPER, Plaintiff, v. D. ROSAIRO, et al., Defendants.
ORDER
This matter is before the court on plaintiff John Clint Draper's motion to appoint counsel. Mot. for Counsel, ECF 277. Mr. Draper is a state prisoner that originally brought this action without counsel under 42 U.S.C. § 1983. ECF No. 1. This court appointed counsel to assist Mr. Draper through his trial in June 2014. Order, filed Sept. 24, 2013, at 2, ECF No. 99. After trial, the court entered judgment against Mr. Draper, consistent with the jury's verdict. Judgment, ECF No. 238. Mr. Draper appealed this court's judgment to the Ninth Circuit. Notice of Appeal, ECF No. 252. He was assisted by court-appointed counsel throughout his appeal. See Draper v. Rosairo, 836 F.3d 1072, 1075 (9th Cir. 2016). The Ninth Circuit panel affirmed this court's dismissal of the procedural due process claim and its evidentiary rulings, but vacated and remanded the court's award of costs against Mr. Draper. Id. at 1089. The panel instructed the court to reconsider whether a cost award was warranted, and, if so, an appropriate amount in light ///// of the panel's opinion. Id. Mr. Draper now seeks a court-appointed attorney to assist him on remand. ECF No. 277. For the following reasons, the court denies Mr. Draper's motion.
The decision whether to appoint counsel is within the discretion of the court and is "granted only in exceptional circumstances." Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)); Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998); Johnson v. U.S. Dept. of Treasury, 939 F.2d 820, 824 (9th Cir. 1991). To find exceptional circumstances warranting court-appointed counsel, the court must evaluate "the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims in light of the complexity of the legal issues involved." Agyeman, 390 F.3d at 1103 (internal quotes omitted); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
Here, the court finds no exceptional circumstances warranting the appointment of counsel. The limited issue on remand before this court is far from complex. See Terrovona v. Kincheloe, 912 F.2d 1176 ("Trial court did not abuse its discretion by failing to appoint counsel for petitioner given that no evidentiary hearing was required and that issues to be considered on remand had been narrowed.") (citation omitted); cf. Chaney v. Lewis, 801 F.2d 1191, 1196 (1986) (instructing the court to appoint counsel in a death penalty case because the panel's opinion "increased the complexities of the issues with which the district court must deal on remand"). Mr. Draper has provided no argument as to why this case presents exceptional circumstances. See ECF No. 277 (stating only that he requests "another lawyer to represent him in pro bono in this case to consider the issue of costs and the miscarriage of justice..."). Previously, the court appointed counsel to assist Mr. Draper before and during trial, given his triable claims. On remand, the limited inquiry before the court involves reassessing the appropriate award of costs in light of the Ninth Circuit's instructions. This straightforward issue does not require that Mr. Draper be provided the assistance of counsel.
Accordingly, the court denies Mr. Draper's motion to appoint counsel. This resolves ECF No. 277. /////
The court orders the following briefing schedule on the merits of the issue on remand. The court will hold a hearing on the matter at 10:00 a.m. on February 10, 2017. Both parties have a deadline of 5:00 p.m. on January 13, 2017 to submit initial briefs. Should the parties wish to submit rebuttal briefs, they must do so by 5:00 p.m. on January 27, 2017.
IT IS SO ORDERED DATED: December 1, 2016.
/s/_________
UNITED STATES DISTRICT JUDGE