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Ruben Dario Garcia, Jr v. Smith

June 27, 2012

RUBEN DARIO GARCIA, JR., PLAINTIFF,
v.
SMITH, STEWART, CHANCE, MOORE,
CLUCK, VASQUEZ, WALL, BROWN, STRICKLAND, ELIAS, SAVALA,
MERCHANT, SUGLICH, CONTRERAS, MORRIS, CORTEZ, PEDERSEN,
HIRING AUTHORITY JOHN/JANE DOE'S #1 TO 5, 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 [ECF NO. 82]

Plaintiff Ruben Dario Garcia, Jr., a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on June 1, 2010, pursuant to 42 U.S.C. § 1983 [ECF No. 1, 5]. Garcia's complaint was dismissed for failure to state a claim [ECF No. 5]. Plaintiff filed a First Amended Complaint on October 5, 2010, which was also dismissed sua sponte for failing to state a claim [ECF Nos. 9, 15].

Garcia filed a Second Amended Complaint on December 7, 2010, alleging claims for cruel and unusual punishment, a due process violation, retaliation, conspiracy, a violation of equal protection, and interference with his access to the courts [ECF No. 16]. On February 3, 2011, the due process, cruel and unusual punishment, and access to courts causes of action were dismissed for failing to state a claim [ECF No. 17]. The Defendants filed a Motion to Dismiss the Second Amended Complaint [ECF No. 50], which was granted in part and denied in part [ECF Nos. 64, 72]. Defendants Brown, Chance, Cluck, Contreras, Cortez, Elias, Merchant, Moore, Savala, Smith, Stewart, Vasquez, and Wall subsequently filed an Answer [ECF No. 74].

Garcia filed this Motion to Appoint Counsel nunc pro tunc to April 17, 2012 [ECF No. 82]. In support of his request for counsel, the Plaintiff asserts that (1) the issues in this case are factually complex, (2) he is unable to investigate, (3) the matter involves conflicting testimony and credibility will be central to his case, (4) Garcia is unable to adequately present his claims, (5) his causes of action have merit, and (6) the issues are legally complex. (Mot. Appointment Counsel 5-12, ECF No. 82.)*fn1 On May 2, 2012, the Defendants' Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for the Appointment of Counsel was filed [ECF No. 83]. There, Defendants argue that none of Plaintiff's stated reasons are "exceptional circumstances" that warrant appointed representation. (Defs.'s Mem. P. & A. Opp'n 2-5, ECF No. 83.)

"The court may request an attorney to represent any person unable to afford counsel." 28 U.S.C.A. § 1915(e)(1) (West 2006).

But "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) (citations omitted). 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. U.S. 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. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)). "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.'" Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). "'Neither of these factors is dispositive and both must be viewed together before reaching a decision.'" Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn, 789 F.2d at 1331).

A. Likelihood of Plaintiff's Success on the Merits

To receive court-appointed counsel, Garcia must present a non-frivolous claim that is likely to succeed on the merits. Wilborn, 789 F.2d at 1331. The contentions in Garcia's Second Amended Complaint arise from events that occurred while he was incarcerated at Richard J. Donovan Correctional Facility in San Diego, California ("Donovan"). (Second Am. Compl. 1, ECF No. 16.)*fn2

The Plaintiff's surviving claims are for retaliation, conspiracy, and a violation of equal protection.

In count one, Garcia asserts that the Defendants retaliated and conspired to retaliate against him for submitting an inmate grievance. (Second Am. Compl. 8-15, ECF No. 16.) The grievance was based on a policy that required all inmates to walk single file with their shirts tucked in when they went to "chow hall." (Id. at 8.) Plaintiff urges that the Defendants retaliated by placing him in administrative segregation and, without looking at his central file, housing him with inmates that he was to be segregated from. (Id. at 11-13.)

Next, in count two, Garcia contends that the Defendants continued to retaliate and conspire against him when they refused his request under the "convenient cell move program" to be housed with his brother. (Id. at 17.) The Defendants purportedly granted four other sets of brothers' requests during this period, but denied his request. (Id. at 18.)

The Plaintiff maintains in count three that Defendants violated his equal protection rights by denying his request to be reassigned to his job in the prison laundry division after he was released from administrative segregation. (Id. at 19.) The Defendants continued to deny his requests even though there were at least thirty openings in the laundry division since Garcia's release from administrative segregation. (Id.)

Finally, in count four, Plaintiff makes generalized allegations of a conspiracy to violate his civil rights, reiterating the constitutional violations he specified ...


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