                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                             FOR THE NINTH CIRCUIT                          JAN 13 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

MING CHING JIN,                                  No. 08-56199

               Plaintiff - Appellant,            D.C. No. 2:06-cv-00742-R-JCR

  v.
                                                 MEMORANDUM *
L. FORGIA,

               Defendant - Appellee.



                     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

          *
             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).
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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