United States District Court, C.D. California, Western Division
OPINION AND ORDER
DENYING WITHOUT PREJUDICE THE PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL
VALERIE BAKER FAIRBANK, Senior District Judge.
Proceeding pro se, federal prisoner Joseph McDaniels ("plaintiff") filed this action on December 19, 2014 against nine defendants - the federal government, warden Linda McGrew, Captain R. Hodak, Lt. Aguilar, Lt. Patterson, Unit Counselor Pablo Prieto, officer Flores, the Federal Bureau of Prisons and officer McCormick - seeking relief under the Federal Tort Claims Act ("FTCA") and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Also in December 2014, plaintiff filed a motion for the appointment of counsel directed to the Magistrate. For reasons that follow, the Court will deny plaintiff's motion without prejudice to its renewal later in the case.
PLAINTIFF'S COMPLAINT IN THE INSTANT FTCA/CIVIL-RIGHTS CASE
Plaintiff states that his motion for appointment of counsel is "based upon the facts stated in the attached Complaint for Damages filed herein, the facts stated in the United States District Court case of McDaniels v. Federal Bureau of Prisons, #2:14-cv-07780-JFW-PLA, " a Freedom of Information Act ("FOIA") action that is now pending before Judge John Walter and Magistrate Judge Abrams, "and the attached Declaration of Joseph McDaniels." Doc 2 at 1.
In the complaint here, plaintiff McDaniels alleges that he was twice assaulted in Unit 6A at USP Victorville on July 8, 2013 by inmates who are known gang members; that Unit Counselor Pablo Prieto caused the assaults by circulating rumors to inmates that plaintiff was a sex offender who "should not be allowed to walk' at Victorville"; that defendant guard McCormick was outside the Unit and not supervising the orderlies or inmates while plaintiff was twice assaulted and his assailants therefore had time to obtain weapons; and that neither McCormick nor any other Unit 6 staff member came to his aid when he activated his cell alarm. See Doc 1 at page 3 ¶¶ I-J and pages 5-6 ¶¶ (1) through (11).
According to plaintiff, while he was bleeding profusely, having difficulty breathing, and having trouble staying conscious, en route to the medical ward, defendants Hodak and Agular strapped him to the gurney too tightly and handcuffed him so tightly that his hands were swollen and numb, and that defendants Agular and Patterson refused plaintiff's numerous requests to loosen the handcuffs from July 8 through July 12, 2013. See Doc 1 at pages 6-7 ¶¶ (12) through (22). Plaintiff further alleges that even after a medical duty status sheet and an oral command by SHU Commander Lieutenant Holstead both stated that bigger handcuffs had to be used on plaintiff due to his wrist injury, defendant Flores laughed while she maliciously tightened the handcuffs on plaintiff in the presence of two inmates, officer Logan, and "PA Esquetini." See Doc 1 at page 8 ¶¶ (24) through (28).
More broadly, plaintiff alleges that before he was assaulted, there had been several serious violent incidents at USP-Victorville that had been brought to the attention of defendant McGrew and Captain Hodak, who did nothing in response to the reports, including the stabbing of wheelchair-bound inmate Russell Jenkins within two weeks of plaintiff's assault, a November 2013 murder of an inmate in Unit 6A, and two murders of inmates on June 21-22, 2014. See Doc 1 at page 2 ¶ D and page 9 ¶¶ (30) through (35). Plaintiff's theory is that "[t]he federal authorities continue to have a hands-off' policy when it comes to the FBOP... as many inmates are never prosecuted for these murders and assaults", Doc 1 at page 9 ¶ 36. Plaintiff's legal theory under the Federal Tort Claims Act ("FTCA") is that the defendant federal government breached its duty to non-negligently endeavor to protect him from harm because its employees failed to follow policies and procedures regarding the disclosure of sensitive information about high-security inmates, failed to follow policies and procedures regarding handcuffing of injured inmates, and failed to follow directives of its own medical staff with regard to his handcuffing in particular, causing him to suffer life-threatening injuries, permanent injuries, and pain and suffering. See Doc 1 at 10 ¶¶ (37) through (42). Plaintiff also asserts a federal constitutional claim pursuant to Bivens and explains the alleged involvement of each of the aforementioned individual defendants, see Doc 1 at 11-13 ¶¶ (45) through (61).
PLAINTIFF'S COMPLAINT IN THE RELATED FREEDOM OF INFORMATION CASE.
In the related Freedom of Information Act ("FOIA") action, Central District of California case number LA CV 14-07780-JFW-PLA, plaintiff seeks to compel "the expedited processing and release of agency records that were requested by plaintiff from [the]... Federal Bureau of Prisons (FBOP)." 14-7780 Doc 5 at 1. In the FOIA action, plaintiff essentially alleges that the FBOP wrongfully denied, ignored, or delayed responding to his several written requests from October 2013 through May-June 2014 for information relating to the assaults he suffered at USP-Victorville on July 8, 2013. See 14-7780 Doc 5 at pages 2-4 ¶¶ (7) through (19). In the first count, plaintiff claims that the FBOP violated FOIA (5 U.S.C. § 552(a)(6)(E)(ii)) and the DOJ's regulations by failing timely to respond to his request for information. See 14-7780 Doc 5 at 4 ¶¶ (20) and (21). In the second count, plaintiff claims that the FBOP's failure timely to respond to his requests was arbitrary and capricious and constituted "agency action unlawfully withheld and unreasonably delayed" in violation of the Administrative Procedures Act ("APA"), 5 U.S.C. § 701.
ANALYSIS OF APPOINTMENT OF COUNSEL IN A CIVIL CASE
The Court begins by reminding petitioner that there is generally no constitutional right to counsel in a civil case, see United States v. 30.6 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986); see also Olson v. Smith, No. 13-36062, ___ F.Appx. ___, 2015 WL 1742045, *2 (9th Cir. Apr. 17, 2015) ("As a general proposition, a civil litigant has no right to counsel") (citing Lassiter v. Dep't of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 101 S.Ct. 2153 (1981) and Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)).
A federal district court may under "exceptional circumstances" request the service of counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1). See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citation omitted); see also Spicer v. Richards, 2008 WL 4181735, *2 (W.D. Wash. Sept. 8, 2008) (citing Mallard v. U.S. District Court of Iowa, 490 U.S. 296, 301, 308, 109 S.Ct. 1814 (1989) (holding that district courts lack authority to require attorneys to represent 42 U.S.C. section 1983 civil-rights plaintiffs in federal court)) (emphasis added).
In order to determine whether this is the extraordinary case where the Court would appoint or ask an attorney to represent a civil litigant, a federal district court in our circuit "evaluates the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his or her claim pro se in light of the complexity of the legal issues involved." Spicer, 2008 WL 4181735 at *2 (citing Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990) and Richards v. Harper, 864 F.2d 85, 87 (9th Cir.1988)); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). "Neither of these issues is dispositive and instead [they] must be viewed together." Palmer, 560 F.3d at 970 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Only "rarely" will a federal court find a case to be so complex that it is appropriate to appoint counsel for a civil litigant who faces no loss of liberty in the controversy at hand. See Dotson v. Doctor, 2014 WL 2208090, *1 n.1 (E.D. Cal. May 28, 2014) (Sheila Oberto, M.J.) ("Counsel is appointed in civil cases such as this only rarely, if exceptional circumstances exist."); United States v. Melluzzo, 2010 WL 1779644, *3 (D. Ariz. May 3, 2010) (Mary Murguia, J.) ("[A]ppointment of counsel in a civil case is rarely invoked...."); see also Schwartzmiller v. Roberts, 1994 WL 48967, *3 n.1 (D. Or. Feb. 11, 1994) (Frye, J.) ("It is extremely rare that indigent civil defendants are appointed counsel in judicial proceedings.") (emphasis added), aff'd, No. 94-35241, 62 F.3d 1425, 1995 WL 470882 (9th Cir. Aug. 9, 1995) (Choy, Sneed, Ferguson) (table decision, text only on WestLaw).
At this juncture, petitioner has not convinced the Court that this is the rare civil case where it would be appropriate to appoint counsel for him. The Court's review of his FTCA/ Bivens complaint herein and his FOIA complaint before Judge Walter does not suggest that this case involves such particularly complex legal or factual issues that plaintiff will not be able to effectively prosecute the case without the assistance of counsel. This analysis is not changed by plaintiff's vague assertion (Motion for Counsel at 2, Declaration ¶ 7) that his "case is part of a[n] FBI investigation where criminal charges may be still pending, ...." It is not enough for plaintiff simply to assert, "my case will involve complex litigation under the FTCA and Bivens, where FBOP Policies and the discretionary function exemptions (DFE) will most likely need to be analyzed." Motion for Counsel at page 4 ¶ 15. Nor does plaintiff cite any authority for his implication that the case is so unusually complex as to require appointed counsel because the case will involve numerous depositions, because some witnesses are inmates who will need to be subpoenaed and brought to testify from prisons "in California, ...