The opinion of the court was delivered by: United States Magistrate Judge Ruben B. Brooks
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL [DOC. NO. 5]
Plaintiff John Nobles, a federal prisoner proceeding pro se, filed a personal injury Complaint in the Superior Court of California on March 28, 2007 [doc. no. 1]. He alleged that the U.S. Customs and Border Protection ("CBP") denied him medical care while he was in CBP custody. (Notice of Removal 4-6.)*fn1 Defendant removed the case to this Court on July 6, 2007. (Id. at 1.) Several months later, Plaintiff submitted a Request for Appointment of Counsel [doc. no. 5], which was filed nunc pro tunc to October 11, 2007. Defendant thereafter filed a Motion to Dismiss the Complaint [doc. no. 7], which was set to be heard by this Court on April 21, 2008. Plaintiff's Opposition to the Motion was due by April 7, 2008, see S.D. Cal. Civil L.R. 7.1(e)(2), but to date no opposition has been filed. On April 21, 2008, the Court found that the Motion was suitable for resolution on the papers without oral argument [doc. no. 8].
In support of his request for appointment of counsel, Nobles asserts the following: (1) He is currently incarcerated in federal prison and has little money; (2) he was placed in the Special Housing Unit ("S.H.U."), and therefore has limited access to information to use in prosecuting this case; and (3) he cannot obtain pro bono counsel because he is only allowed one phone call per month and has no other means of contacting attorneys. (Req. for Counsel 1-2.)
28 U.S.C. § 1915(e)(1) provides: "The court may request an attorney to represent any person unable to afford counsel." 28 U.S.C.A. § 1915(e)(1) (West Supp. 2006). Yet, "it is well-established that there is generally no constitutional right to counsel in civil cases." United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citing Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994); Friedman v. Arizona, 912 F.2d 328, 333 (9th Cir. 1990)). Federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in United States Currency, 54 F.3d 564, 569 (9th Cir. 1995).
Nevertheless, district courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1), to request attorney representation for 2 07cv1231-WQH (RBB) indigent civil litigants upon a showing of exceptional circumstances. See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 824 (9th Cir. 1989).
A finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of 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 1104 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (citation omitted)). "'Neither of these factors is dispositive and both must be viewed together before reaching a decision.'" Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1332).
I. Likelihood of Plaintiff's Success on the Merits
To receive court-appointed counsel, Nobles must present a non-frivolous claim that is likely to succeed on the merits. Wilborn, 789 F.2d at 1331. In the Complaint, Plaintiff asserts that on February 22, 2007, an unnamed United States Customs agent refused a doctor's order granting Plaintiff medical attention. (Notice of Removal 5-6.) Refusing to honor the Plaintiff's need for medical care left Nobles "permanently disabled for life." (Id. at 6.) Following the refusal of medical care, Plaintiff claims the customs agent committed perjury in federal court by denying that he refused to give Plaintiff the proper medical assistance. (Id.) Plaintiff's Complaint purports to state two causes of action arising under California law: negligence and perjury. (Id. at 3, 5.)
A plaintiff suing for negligence under California law must allege four elements: a duty, a breach of that duty, proximate cause, and damages. Berkley v. Dowds, 152 Cal. App. 4th 518, 526, 61 Cal. Rptr. 3d 304, 310-11 (Ct. App. 2007). By statute, California imposes a duty on government employees who have custody of prisoners to provide medical care to the prisoners when needed. Cal. Gov't Code § 845.6. A government employee breaches that duty when a prisoner "is in need of immediate medical care and [the employee] fails to take reasonable action to summon such medical care." Id.
For Plaintiff's negligence claim to succeed, Nobles must demonstrate that the customs agent knew, or should have known, that Plaintiff was in need of immediate medical care. Berkley, 152 Cal. App. 4th at 526, 61 Cal. Rptr. 3d at 310-11. Plaintiff also needs to prove that he suffered an injury, and that the injury was caused by the custom agent's refusal to provide medical care. Id.
The Complaint alleges that Nobles suffered a "severe disability for life" and "permanent disfigurement[,]" but it does not provide any specific information about the type of injury he suffered. (See Notice of Removal 5-6.) Furthermore, the Complaint does not identify what doctor's orders the customs agent allegedly refused to follow. (See id. at 6.) Without any specific factual allegations, the Court cannot say there is a likelihood that Plaintiff will succeed on the merits of his negligence claim.
Nobles likewise has not shown a likelihood of success on his perjury claim. California law does not recognize a civil cause of action for perjury. Ting v. United States, 927 F.2d 1504, 1515 (9th Cir. 1991) (citing Agnew v. Parks, 172 Cal. App. 2d 756, 765, 343 P.2d 118, 124 (Ct. App. 1959)). Perjury is only punishable as a criminal offense. See People v. Garcia, 39 Cal. 4th 1070, 1091, 141 P.3d 197, 210, 48 Cal. Rptr. 3d 75, 90 (2006) (listing the elements of the crime of perjury). Accordingly, Nobles's purported "perjury" claim is not likely to succeed on the merits. See Kluth v. Bolduc, 738 F. Supp. 329, 332 (E.D. Wis. 1990) (finding a claim without merit because it was precluded by law). Even if he could pursue a cause of action based on the custom agent's allegedly perjured statements, Nobles again fails to provide the Court with any specific facts to support his claim. He does not identify the federal court action in which these ...