United States District Court, S.D. California
ORDER DENYING PLAINTIFF’S SECOND MOTION FOR
APPOINTMENT OF COUNSEL [ECF NO. 32]
HON.
BARBARA L. MAJOR, UNITED STATES MAGISTRATE JUDGE
On July
25, 2016, Plaintiff filed a document entitled
“PLAINTIFF'S SECOND MOTION FOR THE APPOINTMENT
[sic] OF COUNSEL BASED PRIOR ARGUMENT AND A RECENT THREAT TO
AN INMATE ASSISTANT” that was accepted by the Court on
discrepancy on August 2, 2016. ECF Nos. 31-32. Plaintiff
seeks an order from the Court appointing counsel to represent
him in the instant matter. Id. at 1. In support,
Plaintiff argues that he is (1) unable to afford counsel,
unable to speak, read, or write in English, (3) only able to
access the prison law library once a week and is prevented
from going at the same time as his translator, (4) only able
to submit filings in this matter with the assistance of
another inmate, (5) uneducated in the law, and (6) unable to
access legal materials in Spanish or Spanish speaking inmate
clerks in the library. Id. at 1-2. In further
support, Plaintiff argues that appointment of counsel is
necessary to retain medical experts, present evidence, and
cross examine witnesses. Id. at 2. Plaintiff states
that he has attempted to find an attorney to represent him,
but that none of them have been willing to take his case.
Id. Finally, Plaintiff states that the inmate who
has been assisting him has been threatened by a correctional
officer due to his involvement in this matter and as a
result, is not willing to continue assisting Plaintiff in
this matter. Id. at 3-10.
The
Constitution provides no right to appointment of counsel in a
civil case unless an indigent litigant may lose his physical
liberty if he loses the litigation. Lassiter v.
Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981).
However, under 28 U.S.C. § 1915(e)(1), courts are
granted discretion to appoint counsel for indigent persons
under “exceptional circumstances.” Agyeman v.
Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004).
A finding of exceptional circumstances demands 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)).
Thus
far, Plaintiff has drafted and submitted several pleadings
and motions without the assistance of counsel. See
Docket. In addition to the instant motion, he has submitted a
complaint (ECF No. 1), a motion to proceed in forma
pauperis (ECF No. 2), a previous motion for appointment
of counsel (ECF No. 3), a motion to strike his original
exhibits in support of the complaint and replace them with
updated exhibits (ECF No. 7), a motion for the Court to
provide contact information and for Defendants to be served
timely (ECF No. 10), a letter requesting blank USM-285 forms
(ECF No. 12)[1], a motion to attach additional documents
to the complaint (ECF No. 13), a motion for additional time
to oppose Defendants’ motion to dismiss (ECF No. 22), a
second motion for additional time to oppose Defendants’
motion to dismiss (ECF No. 25), an opposition to
Defendants’ motion to dismiss (ECF No. 28), and a
request for leave to file a first amended complaint (ECF No.
30). From the Court’s review of these documents, it is
clear that Plaintiff is able to articulate the claims of his
case.[2]
The
Court previously denied Plaintiff’s request for counsel
[see ECF No. 4] and Plaintiff’s current
request does not provide any new facts justifying such an
extraordinary remedy. ECF No. 32. Further, Plaintiff does not
demonstrate a likelihood of success on the merits such that
his case should be classified as an “exceptional
circumstance[].” Agyeman, 390 F.3d at 1103;
see also Wilborn, 789 F.2d at 1331. While as
Plaintiff argues, it is likely true that that the appointment
of counsel would assist him with discovery and trial issues
such as the examination of witnesses, these factors do not
warrant the finding of exceptional circumstances supporting
an appointment of counsel. See Rand v. Rowland, 113
F.3d 1520, 1525 (9th Cir.1997), overruled on other grounds,
154 F.3d 952 (9th Cir.1998) (en banc) (holding that the
appellant “may well have fared better [with appointed
counsel]-particularly in the realms of discovery and the
securing of expert testimony-but this is not the
test”); see also Peterson v. Anderson, 2009 WL
4506542, at *3 (D. Mont. Dec.2, 2009) (citing Wilborn, 789
F.2d at 1331) (“Although Plaintiff contends he is not
in a position to litigate this matter, pro se litigants are
rarely in a position to research and investigate facts
easily. This alone does not deem a case complex.”).
“[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
(“[A] pro se litigant will seldom be in a position to
investigate easily the facts necessary to support the
case.”). But a 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; see
also Wilborn , 789 F.2d at 1331 (“If all
that was required to establish successfully the complexity of
the relevant issues was a demonstration of the need for
development of further facts, practically all cases would
involve complex legal issues.”). Plaintiff has not
established that this case is “exceptional” or
that the issues in it are particularly complex.
Because
Plaintiff has not alleged the requisite “exceptional
circumstances” at this time, the Court DENIES without
prejudice Plaintiff’s request for appointment of
counsel. See Taa v. Chase Home Fin., 2012 WL 507430,
at *2 (N.D. Cal. Feb. 15, 2012) (noting that plaintiffs'
lack of legal training, limited English, and poverty do not
constitute exceptional circumstances, as these are the types
of difficulties many other litigants face in proceeding in
pro se); see also Montano v. Solomon, 2010 WL
2403389, at *2 (E.D. Cal. June 11, 2010) (stating that
“[n]either indigence nor lack of facility in English
qualifies as an exceptional circumstance in a prisoner civil
rights case.”); Garces v. Degadeo, 2007 WL
1521078, at *1 (E.D. Cal. May 22, 2007) (finding that
“Plaintiffs inability to read or write in English does
not constitute an exceptional circumstance.”).
IT IS
SO ORDERED.
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Notes:
[1] The filing was ultimately rejected
since Plaintiff had already been provided with the forms. ECF
No. 12.
[2] Plaintiff's reliance on another
inmate for assistance in drafting his pleadings [see ECF No.
32 at 3-9] does not alter this analysis. See, e.g.,
Montano v. Solomon, 2010 WL 4137476, at *7 (E.D. Cal.
Oct.19, 2010) (denying plaintiff's motion for appointment
of counsel where “plaintiff has adequately presented,
albeit ...