United States District Court, S.D. California
ORDER: (1) DENYING MOTION FOR APPOINTMENT OF COUNSEL
[Dkt. No. 73]; (2) DENYING MOTION FOR EXPERT WITNESS [Dkt.
No. 75]; (3) REGARDING PLAINTIFF'S MOTION TO COMPEL A
MORE DEFINITE ANSWER; and (4) SUA SPONTE EXTENDING THE TIME
FOR PLAINTIFF TO PROVIDE SUBPOENA TO THE U.S.
Nita L. Stormes United States Magistrate Judge
Moriano Millare, a California inmate proceeding pro se and
in forma pauperis (IFP), filed suit under 42 U.S.C.
§ 1983 alleging various violations by multiple
defendants of his civil rights. Most of the claims revolve
around Millare being allegedly exposed to radiation during
x-ray examinations, being assigned to a top bunk even though
he had a pre-existing broken leg and neck and back pain, and
excessive force used on him in connection with his attendance
at medical appointments. Millare recently filed multiple
motions; the court addresses each in turn below.
Motion for Appointment of Counsel.
asks this court to appoint counsel for these reasons: (1) he
cannot afford counsel; (2-4) the issues are complex; (5-6) he
has limited access to scientific facts regarding radiation
and dermatology; (7) Defendants continue to perform x-rays on
him; (8-10) defendants Ciborowski and Wiley have yet to be
served, Ramirez was only recently served, and extensive
discovery remains to be taken on these three Defendants;
(11-13) Plaintiff says he needs to use expert witnesses and
take depositions; and (14) Plaintiff intends to amend the
address some of these points, defendant Cibrowski was served
on April 11, 2017 [Dkt. No. 77] and the court has taken steps
to facilitate service of the complaint on defendant Wiley
[Dkt. No. 71 and section IV below]. The remaining relevant
points for requesting counsel are that Plaintiff is indigent
and the issues are complex and require extensive discovery.
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 and this
motion. 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 articulated 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 and required use of experts
have not prevented Plaintiff from articulating his claims
thus far. This court reviewed Plaintiff's complaint and
finds that the issues he raises are not particularly complex.
The court understands his claims and the relief sought.
Plaintiff also demonstrated that he has a good grasp on basic
litigation procedure, as ...