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Clack v. San Diego Sheriffs Dep't

February 18, 2009

CHRISTOPHER CHARLES ALEXANDER CLACK, PLAINTIFF,
v.
SAN DIEGO SHERIFFS DEPARTMENT; DEPUTY LATIMER #3275; DEPUTY HOENIG #2840, DEFENDANTS.



The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL [DOC. NO. 21]

Plaintiff Christopher Clack, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights Complaint under 42 U.S.C. § 1983 on April 4, 2008 [doc. no. 1]. He alleged that his constitutional right to be free from cruel and unusual punishment, right to freedom of association, and his right to medical care were violated while he was in custody. (Compl. 3-5.) Several months later, Plaintiff submitted this Motion for Appointment of Counsel [doc. no. 21], which was filed nunc pro tunc to January 22, 2009.

In support of his request for appointment of counsel, Clack asserts the following: (1) He is unable to afford an attorney; (2) the issues in his case are complex and will require research and investigation which will be difficult for him to perform;(3) a trial in his case will likely involve conflicting testimony; and (4) he has attempted but failed to secure counsel. (Mot. for Appointment of Counsel 1-3.)

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 2009). 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). There is also no constitutional right to appointed counsel to pursue a § 1983 claim. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); accord Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998). 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)(discussing § 1915(d); see also United States v. $292,888.04 in U.S. 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 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 1103 (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, Clack must present a non-frivolous claim that is likely to succeed on the merits. Wilborn, 789 F.2d at 1331. Plaintiff's Complaint purports to state three causes of action arising under the Constitution: freedom from cruel and unusual punishment, deliberate indifference to right to medical care, and interference with his right to free association. (Compl. 3-5.) In the Complaint, Plaintiff asserts that on March 29, 2007, Defendant Latimer threw Clack's body and head to the floor until his chin was "split to the bone." (Id. at 3.) Refusing to provide the Plaintiff medical care, Defendant Latimer placed Clack in a cell to suffer until the next shift of deputies found Plaintiff and took him to the emergency room. (Id. at 4.) Plaintiff also alleges that Defendant Hoening aided Defendant Latimer and prevented other inmates from assisting Clack, which violated his right to free association. (Id. at 5)

A plaintiff claiming excessive force under the Eighth Amendment must "allege . . . the unnecessary and wanton infliction of pain . . . ." Whitley v. Albers, 475 U.S. 312, 320 (1986).

Plaintiff "is required to allege overt acts with some degree of particularity such that his claim is set forth clearly enough to give defendants fair notice of the type of claim being pursued." Ortez v. Wash. County, 88 F.3d 804, 810 (9th Cir. 1996) (citing Jones v. Cmty. Redev. Agency, 733 F.2d at 649). "A prison official may be liable for failure to protect an inmate from a use of excessive force if he is deliberately indifferent to a substantial risk of serious harm to an inmate." Estate of Davis v. Delo, 115 F.3d 1388, 1395 (8th Cir. 1997) (citations omitted); see also Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000).

Two elements comprise an Eighth Amendment claim for deliberate indifference to serious medical needs. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). "First, the plaintiff must show a 'serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain."' Id. (citations omitted). "Second, the plaintiff must show the defendant's response to the need was deliberately indifferent." Id. (citations omitted). The second prong, "is satisfied by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference."

Id. (citations omitted).

Although Plaintiff's allegations are sufficient to state a claim for relief, it is too early for the Court to determine Clack's likelihood of success on the merits. Without additional factual information, the Court cannot conclude that Plaintiff is ...


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