United States District Court, S.D. California
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S
MOTION TO APPOINT COUNSEL [DOC. NO. 51.]
William V. Gallo United States Magistrate Judge.
moves for appointment of counsel. As explained below,
Plaintiff's motion is DENIED without prejudice. However,
the Court will revisit this request sua sponte as
the cases proceeds farther along to trial.
filed suit against Defendant Morales on March 2, 2015,
alleging Morales violated his Eighth Amendment rights when
Morales failed to protect him from attack in the San Diego
County George Bailey Detention Facility. Once Plaintiff's
amended complaint survived a motion to dismiss, the Court
issued a Scheduling Order regulating discovery and pretrial
dates on February 16, 2017. The instant motion for
appointment of counsel is Plaintiff's first such request.
is no constitutional right to appointed counsel in a §
1983 action.” Rand v. Rowland, 113 F.3d 1520,
1525 (9th Cir. 1997) (partially overruled en banc on other
grounds). Thus, federal courts do not have the authority
“to make coercive appointments of counsel.”
Mallard v. U.S. Dist. Ct., 490 U.S. 296, 310 (1989);
see also United States v. $292, 888.04 in U.S.
Currency, 54 F.3d 564, 569 (9th Cir. 1995).
courts do have discretion, however, pursuant to 28 U.S.C.
section 1915(e)(1), to request that an attorney represent
indigent civil litigants upon a showing of exceptional
circumstances. See Agyeman v. Corrs. Corp. of Am.,
390 F.3d 1101, 1103 (9th Cir. 2004). “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)); see also Terrell v. Brewer, 935
F.2d 1015, 1017 (9th Cir. 1991).
seeks appointed counsel because (1) he is unable to afford
counsel, (2) his imprisonment will greatly limit his ability
to litigate this case, (3) the issues in this case are
complex and will require significant research and
investigation, (4) he has limited access to the law library
and has limited knowledge of the law, and (5) an attorney
could better handle trial in this case, (6) granting this
motion will not prejudice Defendant, and (7) he has made
repeated attempts to obtain an attorney.
initial matter, the Court agrees that granting the motion
will not prejudice Defendant (reason 6), but Plaintiff's
attempts to obtain an attorney are not a factor the Court
finds persuasive (reason 7).
reasons 1, 2, and 4 are generic factors that every
incarcerated pro se plaintiff faces and are not
convincing reasons to grant the motion. Were these compelling
reasons to grant the motion, every incarcerated plaintiff
would receive appointed counsel and the rule requiring
exceptional circumstances to appoint counsel would be turned
on its head.
Plaintiff's third reason, the Court is familiar with the
facts here and does not find this case complex. It further
appears that Plaintiff has a higher degree of sophistication
than other incarcerated plaintiffs. He was able to
successfully amend his complaint on his first attempt and was
able to survive a second motion to dismiss. It is also
apparent that he is actively participating in the discovery
process, as he has propounded requests for production of
documents and has also sought to perpetuate testimony under
Federal Rule of Civil Procedure 27. The Court acknowledges
the greater difficulty Plaintiffs incarceration poses, but is
not prepared to grant his motion at this time given that it
appears he is making efforts to obtain discovery and has been
creative enough to attempt to leverage a nuanced rule to
as for Plaintiff's reason 5, the Court agrees that any
pro se litigant "would be better served with
the assistance of counsel." Rand, 113 F.3d at
1525. However, so long as a pro se litigant, like
Plaintiff in this case, is able to "articulate his
claims against the relative complexity of the matter, "
the exceptional circumstances which might require the
appointment of counsel do not exist. Rand, 113 F.3d
at 1525 (finding no abuse of discretion under 28 U.S.C.
§ 1915(e) when district court denied appointment of
counsel despite fact that pro se prisoner "may well have
fared better-particularly in the realms of discovery and the
securing of expert testimony").
request for appointment of counsel is DENIED without
prejudice. The Court will revisit this motion sua