United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT
OF COUNSEL (DKT., 34)
Nita L. Stormes United States Magistrate Judge
Vicente Alvarez (“Plaintiff”), a prisoner
proceeding pro se and in forma pauperis,
filed this civil rights action against Defendants Dr. Ko, Dr.
McCabe, Dr. Sangha, and Deputy Director Lewis. He alleges
claims under the Eighth Amendment for deliberate indifference
to his medical needs. (Dkt. No. 1.)
Plaintiff's Request for Appointment of Counsel
asks this Court to appoint him counsel from the Court's
pro bono panel. (Dkt. No. 34.) He argues the Court should
appoint counsel because (1) he does not have ready access to
a law library and lacks legal training in the law; (2)
although he has articulated his claims thus far, he does not
possess the legal training to effectively present his case,
to counter Defendants' anticipated discovery tactics, to
conduct discovery, and to identify and obtain an expert; (3)
his case is complex and requires the expertise of legal
counsel, and such assistance would result in the just, speedy
and inexpensive determination of the action. (Id. at
2-6.) In support, Plaintiff asserts that he is likely to
succeed on the merits, that the issues in his case are
complex and his confinement limits his ability to pursue
discovery, that an attorney will need to present expert
testimony, and that an attorney would be better equipped to
conduct cross-examinations of parties and witnesses on issues
of credibility. (Id. at 13-25.)
is no absolute right to counsel in civil proceedings.”
Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363
(9th Cir. 1994) (citation omitted). 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
discretion to request that an attorney represent indigent
civil litigants upon a showing of “exceptional
circumstances.” 28 U.S.C. § 1915(e)(1);
Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103
(9th Cir. 2004). “A 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.'
Neither of these issues 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 v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986).
this case is in the early stages, and there is very little
before the Court regarding the merits of Plaintiff's case
other than the allegations in the Complaint. See
Dkt. No. 34 at 14-17 (citing to allegations in the
Complaint). As a result, it is difficult at this time to
determine the likelihood that Plaintiff will succeed on the
merits. See Bailey v. Lawford, 835 F.Supp. 550, 552
(S.D. Cal. 1993) (concluding likelihood of success not shown
where the plaintiff did not present any evidence other than
his own assertions to support his claims).
where a pro se civil rights plaintiff shows he has a
good grasp of basic litigation procedure and has been able to
adequately articulate his claims, he does not demonstrate
exceptional circumstances to warrant appointing counsel.
See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
2009). The 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 also demonstrated he
has a good grasp on basic litigation procedure, as evidenced
by his pleadings and submissions.
Plaintiff asserts counsel is needed to engage in discovery
and potentially secure expert testimony, this does not
necessarily amount to exceptional circumstances.
Wilborn, 789 F.2d at 1331 (“Most actions
require development of further facts during litigation and a
pro se litigant will seldom be in a position to
investigate easily the facts necessary to support the case.
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.”); Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (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 realm of discovery and the
securing of expert testimony, ” because that is not the
applicable test). Further, as to Plaintiffs assertion that he
has limited access to the law library, such an issue is
common to many prisoners and also does not amount to
exceptional circumstances. See, e.g., Wood v.
Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990)
(upholding denial of appointment of counsel where plaintiff
complained that he had limited access to law library and
lacked a legal education). In sum, the Court finds Plaintiff
has sufficiently put on his case thus far in light of the
complexity of the legal issues involved, and the
circumstances are not exceptional to warrant appointing
foregoing reasons, Plaintiff has not shown a likelihood of
success or that the complexity of the case requires
appointment of counsel. The Court thus does not find the
“exceptional circumstances” required for
appointment of counsel under 28 U.S.C. § 1915(e)(1).
Accordingly, Plaintiffs request for appointment of counsel at
this time is DENIED.