United States District Court, S.D. California
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S
MOTION TO APPOINT COUNSEL [ECF NO. 10]
Jill L. Burkhardt United States Magistrate Judge
April 11, 2017, Plaintiff filed with the Court a letter
requesting that he be appointed counsel. (ECF No. 10.)
Although not filed properly in the form of a motion, the
Court construes Plaintiff's letter as a motion for
appointment of counsel. Having reviewed Plaintiff's request
for counsel in conjunction with the case record, and for the
reasons below, the Court concludes that Plaintiff fails to
meet the criteria for the Court to appoint him counsel at
this time. Accordingly, Plaintiff's motion is
DENIED without prejudice.
is no constitutional right to the appointment of counsel in
§ 1983 cases. Storseth v. Spellman, 654 F.2d
1349, 1353 (9th Cir. 1981). However, the Ninth Circuit has
held that “a court may under ‘exceptional
circumstances' appoint counsel for indigent civil
litigants pursuant to 28 U.S.C. § 1915(e)(1).”
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009),
cert. denied, 559 U.S. 906 (2010) (quoting
Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103
(9th Cir. 2004), cert. denied sub nom., Gerber
v. Agyeman, 545 U.S. 1128 (2005)). “When
determining whether ‘exceptional circumstances'
exist, a court must consider ‘the likelihood of success
on the merits as well as the ability of the petitioner to
articulate his claims pro se in light of the
complexity of the legal issues involved.'”
Id. (quoting Weygandt v. Look, 718 F.2d
952, 954 (9th Cir.1983)). Neither of these considerations is
dispositive and instead must be viewed together. Id.
(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331
(9th Cir. 1986)).
Plaintiff's Likelihood of Success on the Merits of His
complaint alleges claims of excessive force in violation of
the Eighth Amendment prohibition of cruel and unusual
punishment. (ECF No. 1.) Plaintiff alleges that Defendant
Strayhorn, a clinic officer at the R.J. Donovan Correctional
Facility where Plaintiff is incarcerated, used excessive
force when he handcuffed Plaintiff, slammed Plaintiff to the
ground, and then kicked Plaintiff above his right eye with
his steel-toed boot without provocation. (Id. at
3-7.) Plaintiff alleges that Defendant Paramo, Warden of the
R.J. Donovan Correctional Facility, violated his Eighth
Amendment rights when he allowed Defendant Strayhorn to
injure him in the way described above. (Id. at 2.)
prison guard stands accused of using excessive force in
violation of the Eighth Amendment, “the core judicial
inquiry is . . . whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 7 (1992). In analyzing an Eighth
Amendment excessive force claim, courts consider the
following factors: (1) the need for application of force; (2)
the relationship between the need and the amount of force
used; (3) the extent of the injury inflicted; (4) the threat
“reasonably perceived by the responsible
officials”; and (5) “any efforts made to temper
the severity of a forceful response.” Id.
demonstrate that he has a likelihood of success at trial,
Plaintiff must do more than merely allege that one of his
constitutional rights was violated. He must provide evidence
to the effect that he has a likelihood of success on the
merits of his allegations. See Torbert v. Gore, No.
14-cv-2991 BEN (NLS), 2016 WL 1399230, at *1 (S.D. Cal. Apr.
8, 2016) (“A plaintiff that provides no evidence of his
likelihood of success at trial fails to satisfy the first
factor of the [exceptional circumstances] test.”).
Here, Plaintiff has not offered evidence that supports a
likelihood of success on the merits of the allegations made
in his complaint. Although the medical report that Plaintiff
attached to his complaint is some evidence of the severity of
the injury that Plaintiff suffered (ECF No. 1 at 19), the
Court has no evidence before it as to how Plaintiff was
injured in general, much less evidence specifically relating
to the other factors relevant to an excessive force claim,
such as any threat that Defendant Strayhorn reasonably
perceived and any need for the application of force under the
circumstances. Without such evidence, the Court cannot
make a determination that the force Defendant Strayhorn used
on Plaintiff, if any, was not applied in a good-faith effort
to maintain or restore discipline but was instead applied
maliciously and sadistically to cause harm. See
Hudson, 503 U.S. at 7. Thus, at this early stage of the
case, when Defendants have not yet filed a response to
Plaintiff's complaint and the parties have not yet
engaged in discovery, the Court cannot find that Plaintiff is
likely to succeed on the merits of his claim. See Garcia
v. Smith, No. 10-cv-1187 AJB (RBB), 2012 WL 2499003, at
*3 (S.D. Cal. June 27, 2012) (denying motion for appointment
of counsel when it was too early to determine whether any of
plaintiff's claims would survive a motion for summary
reasons above, the Court concludes that Plaintiff fails to
satisfy the first “exceptional circumstances”
factor that would support his request for counsel.
Plaintiff's Ability to Articulate Claims Without the
Assistance of Counsel
also argues in his motion and supplemental documents that a
number of circumstances demonstrate that he is unable to
articulate his claims pro se. First, Plaintiff
argues that the Court should appoint him counsel because he
does not know how to represent himself (ECF No. 6 at 2), he
cannot afford an attorney (ECF No. 8 at 1), and he is a
layman with no legal experience or knowledge (id.).
These burdens are common to most prisoners representing
themselves pro se and do not establish the
exceptional circumstances that would support the appointment
of counsel. See, e.g., Wood v. Housewright,
900 F.2d 1332, 1335-36 (9th Cir. 1990) (denying appointment
of counsel where plaintiff complained that he had limited
access to law library and lacked a legal education).
Plaintiff argues that the Court should appoint him counsel
because he “take[s] a lot of psych medication”
and is “not mentally stable too [sic] put up a fight to
defendant.” (Id.) While the Court is
sympathetic to Plaintiff's situation, this factor, on its
own and without a showing that Plaintiff is likely to succeed
on the merits of his claims, is insufficient to demonstrate
the type of exceptional circumstances that would necessitate
the appointment of counsel. The Court has reviewed
Plaintiff's complaint and other filings on the docket and
finds that any mental disability from which Plaintiff may
suffer has not prevented him from effectively communicating
with the Court. Plaintiff's filings thus far are well
written, organized, and clear, and the Court is able to
understand Plaintiff's claims and the relief that he
seeks. In addition, this case is not extraordinarily complex.
It involves excessive force Eighth Amendment claims against
two defendants, and the facts are fairly straightforward.
Thus, Plaintiff has shown that despite any mental disability
that he may suffer, he has been able to articulate his claims
in light of the complexity of his case.
Court does not doubt that Plaintiff, like most pro
se litigants, finds it difficult to articulate his
claims and would be better served with the assistance of
counsel. It is for this reason that in the absence of
counsel, federal courts employ procedures that are highly
protective of a pro se litigant's rights.
See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam) (holding that the pleadings of a pro se
inmate must be held to less stringent standards than formal
pleadings drafted by lawyers). In fact, where a plaintiff
appears pro se in a civil rights case, the 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, as long as a pro se ...