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Millare v. Gonzales

United States District Court, S.D. California

April 27, 2017

MORIANO MILLARE, Plaintiff,
v.
L. GONZALES, Correctional Officer; H. ASBURY, Manager/Supervisor; R. EBALO, Registered Nurse; G. CASIAN, Physician; A. JAMES, Vocational Nurse; S. PUCKETT, Registered or Vocational Nurse; G. WILEY, Nurse Practitioner; D. McARTHUR, Registered Nurse; M. HODGESON, Radiology Technician; A. CASTRILLON, Radiology Technician; DOE 1, Director of Radiological Services; S. ROBERTS, Chief Medical Executive; L. CIBROWSKI, Manager/Supervisor; P. H. BRACAMONTE, Manager Supervisor; DOE 2, Health Care Manager; DOE 3, Chief Medical Officer; DOE 4, Health Care Standards Compliance Coordinator; DOE 5, Correctional Health Services Administrator; DOE 6, Supervising Registered Nurse; DOE 7, Associate Warden, Health Care Operations; R. OLSEN, Appeals Coordinator; J. RAMIREZ, Appeals Coordinator; DOE 8, Manager/Supervisor Associate Warden; DOE 9, Manager Supervisor Chief Deputy Warden, Defendants.

          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. MARSHAL.

          Hon. Nita L. Stormes United States Magistrate Judge

         Plaintiff 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.

         I. Motion for Appointment of Counsel.

         Millare 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 complaint.

         To 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.

         A. Legal Standard.

         The 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).

         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.” 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 decision. Id.

         B. Discussion.

         1. Likelihood of Success on the Merits.

         A 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 Wilborn factor.

         2. Plaintiff's Ability to Articulate His Claims.

         Where a 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.

         The 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 ...


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