United States District Court, S.D. California
ORDER: (1) DENYING THIRD MOTION FOR APPOINTMENT OF
COUNSEL [DKT. NO. 82]; AND (2) DENYING SECOND MOTION FOR
APPOINTMENT OF EXPERT WITNESS [DKT. NO. 84].
Nita L. Stormes United States Magistrate Judge
Javon Lamar Tobert ("Plaintiff"), a prisoner
proceeding pro se and in forma pauperis,
filed this civil rights action on December 9, 2014. He
alleges excessive force, cruel and unusual punishment and
deliberate indifference claims arising from an alleged
incident where one of the defendants slammed a metal door on
Plaintiff's left arm.
asks this court, for a third time, to appoint him counsel
from the court's pro bono panel, and asks again for
appointment of an expert witness. He argues that the
appointments are appropriate here because (1) Torbert is
mentally impaired, suffering from serious mental health
issues; (2) he lacks education and has limited access to the
law library due to his housing assignment; (3) he will
require the help of experts to prove his claims, which is
complex and presents scientific issues outside Torbert's
scope of understanding; and (4) the parties dispute the facts
and Torbert is not trained in how to present evidence.
there has not been a substantial change in circumstance from
the previous requests, the court DENIES the motion for
appointment of counsel and DENIES the motion for appointment
MOTION FOR APPOINTMENT OF COUNSEL
Constitution provides no absolute right to the appointment of
counsel in any civil proceeding. Hedges v. Resolution
Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). In
pro se and in forma pauperis proceedings,
district courts do not have the authority "to make
coercive appointments of counsel." Mallard v. United
States District Court, 490 U.S. 296, 310 (1989). But
they do have the discretion to request that an attorney
represent an indigent civil litigant upon a showing of
"exceptional circumstances." 28 U.S.C. §
1915(e)(1); Agyeman v. Corrections Corp. Of America,
390 F.3d 1101, 1103 (9th Cir. 2004).
finding of exceptional circumstances "requires an
evaluation of both the likelihood of success on the merits
and the ability of the [plaintiff] to articulate his claims
pro se in light of the complexity of the legal
issues involved." Wilborn v. Escalderon, 789
F.2d 1328, 1331 (9th Cir. 1986), quoting Weygandt v.
Look, 718 F.2d 952, 954 (9th Cir. 1983). Neither of the
Wilborn factors are dispositive, and they must be
viewed together before the district court reaches its
Likelihood of Success on the Merits.
plaintiff that provides no evidence of his likelihood of
success at trial fails to satisfy the first factor of the
Wilborn test. Bailey v. Lawford, 835
F.Supp. 550, 552 (S.D. Cal. 1993). Here, there is very little
before the court regarding the merits of Plaintiff's
case, other than the assertions in the complaint. As a
result, it is difficult at this time to determine the
likelihood that Plaintiff will succeed on the merits.
Therefore, Plaintiff fails to satisfy the first
Plaintiff's Ability to Articulate His
pro se civil rights plaintiff shows he has a good
grasp of basic litigation procedure and has been able to
articulate his claims adequately, he does not demonstrate the
exceptional circumstances required for the appointment of
counsel. See Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009). As another court in this district noted,
there is "no doubt [that] most pro se litigants
find it difficult to articulate their claims and would be
better served with the assistance of counsel."
Garcia v. Cal. Dep't of Corrections & Rehab.,
2013 WL 485756, at *1 (S.D. Cal. Feb. 6, 2013). But it is for
this reason that federal courts employ procedures that
protect a pro se litigant's rights. See
Haines v. Kerner, 404 U.S. 519, 520 (1972). In pro
se civil rights cases, a court must construe the
pleadings liberally and afford the plaintiff any benefit of
the doubt. Karim-Panahi v. Los Angeles Police
Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Thus,
where a pro se plaintiff can articulate his claims
in light of their relative complexity, there are no
exceptional circumstances to justify appointment of counsel.
Garcia, 2013 WL 485756, at *1, citing
Wilborn, 789 F.2d at 1331.
purported complexity of this case, Torbert's mental
illness, and the presence of disputed facts have not
prevented him from articulating his claims. This court has
reviewed Plaintiff's complaint and other pleadings and
finds that the issues he raises are not particularly complex.
The court understands Plaintiff's claims and the relief
sought. Plaintiff has also demonstrated that he has a good
grasp on basic litigation procedure, as evidenced by the
pleadings and submissions he has filed with this court.
Further, as to his claim of limited access to the law
library, such an issue is common to most prisoners, and does
not amount to exceptional circumstances. See, e.g., Wood
v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990)
(denying appointment of counsel where plaintiff complained
that he had limited access to law library and lacked a legal
education). The court finds that Plaintiff has sufficiently
put on his case thus far in light of the complexity of the
legal issues involved.
the Wilborn factors together, Plaintiff has not
shown a likelihood of success on the merits of his case or
that he cannot articulate his claims and litigate this action
pro se. Therefore, Plaintiff has not established the
exceptional circumstances ...