UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
September 2, 2009
MICHAEL DOKTOREZTK, PLAINTIFF,
S. MORALES, DEFENDANT.
The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION AND DECLARATION FOR APPOINTMENT OF COUNSEL [DOC. NO. 7]
Plaintiff Michael Doktoreztk, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights Complaint under 42 U.S.C. § 1983 on June 12, 2009 [doc. no. 1].*fn1 He alleged that his constitutional right to be free from cruel and unusual punishment was violated while he was in custody. (Compl. 9-18.) Plaintiff submitted this Motion and Declaration for Appointment of Counsel [doc. no. 7], which was filed nunc pro tunc to August 17, 2009.
In support of his request for appointment of counsel, Dokrorezth asserts the following: (1) The issues in this case are complex; (2) he is indigent and ignorant of the law; (3) he will have difficulty performing research and investigation; (4) the prison law library is inadequate; (5) he will not have the assistance of other inmates; and (6) the trial will likely involve conflicting testimony. (Mot. Decl. Appointment 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 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, Dokrorezth 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 a cause of action for violation of his right under the Eighth Amendment to be free from cruel and unusual punishment. (Compl. 9-18.) In the Complaint, Plaintiff asserts that on August 27, 2007, he was in protective custody, but Defendant Morales allowed inmates from the general population to assault him. (Id.)
"[T]he treatment a prisoner receives and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31 (1993). The Eighth Amendment "requires that inmates be furnished with the basic human needs, one of which is 'reasonable safety.'" Id. at 33 (quoting Deshaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 200 (1989)). A claim that Defendant failed to protect Plaintiff from a substantial risk of serious harm at the hands of other inmates is properly analyzed under the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Helling, 509 U.S. at 35); Wilson v. Seiter, 501 U.S. 294, 303 (1991); Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001).
Although Plaintiff's allegations are sufficient to state a claim for relief, it is too early for the Court to determine Dokrorezth's likelihood of success on the merits. Without additional factual information, the Court cannot conclude that Plaintiff is likely to succeed. See Bailey, 835 F. Supp. 550, 552 (S.D. Cal. 1993).
II. Plaintiff's Ability To Proceed Without Counsel
To be entitled to appointed counsel, Dokrorezth must also show he is unable to effectively litigate the case pro se in light of the complexity of the issues involved. See Wilborn, 789 F.2d at 1331.
Courts have required that "indigent plaintiffs make a reasonably diligent effort to secure counsel as a prerequisite to the court's appointing counsel for them." Bailey v. Lawford, 835 F. Supp. at 552. Plaintiff has not shown that he made any efforts to secure cousnel. (Mot. Decl. Appointment Counsel 1-2; id. Attach. #1 Mem. P. & A. 1-2.) Thus, he has not made a reasonably diligent effort to secure counsel prior to petitioning for appointment of counsel.
Dokrorezth claims he is unable to afford outside legal counsel. (Mot. Decl. Appointment Counsel 1-2.) This argument is not compelling because indigence alone does not entitle a plaintiff to appointed counsel. Plaintiff further asserts that the issues are complex and he his has limited ability to adequately conduct research and prepare his case. (Id.) He claims that the law library is inadequate, and he will not have the assistance of other inmates. (Id. at 2.) Plaintiff argues that a trial would be difficult because there may be conflicting testimony. (Id.) Based on these facts, Plaintiff requests a court-appointed attorney. (Id. at 1-2.)
Although Dokrorezth asserts that his access to legal materials is limited, he has not presented any facts demonstrating that he is being denied "reasonable" access. See Lindquist v. Idaho State Bd. of Corrs., 776 F.2d 851, 858 (9th Cir. 1985). "[T]he Constitution does not guarantee a prisoner unlimited access to a law library. Prison officials of necessity must regulate the time, manner, and place in which library facilities are used." Id. Plaintiff has not shown that he is denied reasonable access to a law library or other means of conducting legal research, or that he is subjected to burdens beyond those ordinarily experienced by pro se plaintiffs.
Plaintiff has filed a Complaint, Motion and Declaration Under Penalty of Perjury in Support of Motion to Proceed in Forma Pauperis, and a Motion and Declaration for Appointment of Counsel which are adequate in form [doc nos. 1, 2, 7]. But Dokrorezth claims these filings were prepared by another inmate who will no longer assist him. (Mot. Decl. Appointment Counsel Attach. #2 Ex. A at 1.) "[A]ny pro se litigant certainly would be better served with the assistance of counsel." Rand, 113 F.3d at 1525; see also Wilborn, 789 F.2d at 1331 (explaining, "a pro se litigant will seldom be in a position to investigate easily the facts necessary to support the case"). But Plaintiff is only entitled to appointed counsel if he can show "that because of the complexity of the claims he [is] unable to articulate his positions." Rand, 113 F.3d at 1525. Dokrorezth has not pointed to anything in the record which makes this case "exceptional" or the issues in it particularly complex.
Additionally, factual disputes and anticipated cross-examination of witnesses do not indicate the presence of complex legal issues warranting a finding of exceptional circumstances. See Rand, 113 F.3d at 1525 (holding that while the appellant might have fared better with counsel during discovery and in securing expert testimony, "this is not the test"). The "exceptional circumstances" required for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) are absent.
Because Plaintiff has failed to demonstrate either a likelihood of success on the merits of his claims or an inability to represent himself (beyond the ordinary burdens encountered by prisoners representing themselves pro se), Plaintiff's motion is DENIED without prejudice.
IT IS SO ORDERED.