Ming Ching Jin v. L. Forgia

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MING CHING JIN,
Plaintiff - Appellant,
v.
L. FORGIA,
Defendant - Appellee.
No. 08-56199
D.C. No. 2:06-cv-00742-R-JCR
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted December 15, 2009**
Before: GOODWIN, WALLACE, and LEAVY, Circuit Judges.
California state prisoner Ming Ching Jin appeals pro se from the district
court’s summary judgment in favor of defendant in Jin’s 42 U.S.C. § 1983 action
alleging that defendant retaliated against him for exercising his First Amendment
right to file grievances against other prison officers. We have jurisdiction under 28
FILED
JAN 13 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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U.S.C. § 1291. We review a district court’s refusal to appoint counsel pursuant to
28 U.S.C. § 1915(e)(1) for an abuse of discretion. Palmer v. Valdez, 560 F.3d 965,
970 (9th Cir. 2009). We vacate and remand for further proceedings.
Jin asserts that the district court abused its discretion in denying his motion
for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). The district court
based its denial of the motion on the ground that there is no provision for
appointment of counsel in civil actions. However, a court may appoint counsel for
indigent civil litigants under exceptional circumstances. See, e.g., id. Thus, the
district court committed an error of law when it denied Jin’s motion for
appointment of counsel “upon the ground that the court had no authority
whatsoever to appoint counsel for civil litigants.” United States v. McQuade, 579
F.2d 1180, 1181 (9th Cir. 1978). Because the district court never exercised its
discretion in deciding Jin’s motion, we “must reverse and remand for
determination of whether [Jin] is indigent and, if he is, for the exercise of the
court’s discretion in whether to request counsel to represent him.” United States v.
30.64 Acres of Land, 795 F.2d 796, 804 (9th Cir. 1986). As a result, the district
court’s summary judgment is necessarily vacated. See Johnson v. U.S. Dep’t of
Treasury, 939 F.2d 820, 824 (9th Cir. 1991) (holding that “the district court should

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determine if counsel would aid its resolution before disposing of the case on its
merits”).
Jin also asserts that the district court erred in failing to rule on his motion to
amend his pleading and in refusing to allow Jin to file with the court a request to
name additional defendants. On remand, the district court should address these
issues.
VACATED and REMANDED.

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