Unpublished Disposition, 895 F.2d 1419 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1419 (9th Cir. 1989)

Alton Bea WHATLEY, Jr., Plaintiff-Appellant,v.COUNTY OF FRESNO, Harold McKinney, Defendants-Appellees.

No. 88-15261.

United States Court of Appeals, Ninth Circuit.

Submitted July 25, 1989.Decided Feb. 8, 1990.

Before BROWNING, KOZINSKI and RYMER, Circuit Judges.


Whatley's original and amended complaints alleged, pursuant to 42 U.S.C. § 1983, a violation of his constitutional rights resulting from a delay of over 12 days between the date of his arrest and the time he was arraigned. The district court entered an order and judgment dismissing the action with prejudice. We reverse.

The district court properly concluded that Whatley did not state a cause of action for violation of his right to a speedy trial guaranteed under the Sixth Amendment as applied to the states through the Fourteenth Amendment. See Barker v. Wingo, 407 U.S. 514 (1972). However Whatley may have a Fourth Amendment claim cognizable under Sec. 1983 resulting from the delay between his arrest and arraignment. We remand to the district court to allow Whatley to amend his complaint in light of two recent Ninth Circuit decisions: Thompson v. City of Los Angeles and County of Los Angeles, No. 88-5943, slip op. at 11583-85 (9th Cir., Sept. 18, 1989), and McLaughlin v. County of Riverside, No. 89-55534, slip op. at 13318-19 (9th Cir., Nov. 8, 1989).

Next, Whatley appeals the district court's denial of his request for appointment of counsel. Generally, there is no constitutional right to counsel in a civil case. United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). However, the district court, pursuant to 28 U.S.C. § 1915(d), has the discretionary authority to appoint counsel to represent indigent civil litigants subject to appellate review under an abuse of discretion standard. Id. at 798. The exercise of the district court's power to appoint counsel is limited to exceptional circumstances. Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). In determining whether exceptional circumstances exist, the district court must look at both "the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The district court addressed both of these bases when it denied Whatley's motion and Whatley has demonstrated no likelihood of success on the merits. We see no abuse of discretion here.

Whatley next appeals the district court's denial of his motion for default judgment. We review a district court's denial of a motion for default judgment for an abuse of discretion. Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). "A failure to make a timely answer to a properly served complaint will justify the entry of a default judgment." Id. Since the defendant filed a timely responsive pleading, the district court properly denied Whatley's motion.

Whatley next appeals the district court's denial of both his motion to expedite and his motion for a court settlement conference. Whatley failed to show good cause for the expedited consideration of his claims. Further, there is no obligation to hold a settlement conference particularly in the absence of a joint request indicating that both parties are interested in settling the matter. The defendants did not join Whatley's request. Consequently, the district court properly denied both of these motions.

Next, Whatley alleges other violations of his constitutional rights including, but not limited to, false arrest, false imprisonment, and denial of counsel while awaiting arraignment. Whatley's original and amended complaints alleged only a violation of his constitutional rights resulting from a delay between his arrest and arraignment. All other alleged violations of his constitutional rights, contained in his brief on appeal, are now raised for the first time. "We have permitted only narrow and discretionary exceptions to the general rule against considering issues for the first time on appeal." Jovanovich v. United States, 813 F.2d 1035, 1037 (9th Cir. 1987). This case presents none of those exceptions.

Finally, Whatley's motion to expedite this appeal is denied.



The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3