United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S SECOND MOTION TO
APPOINT COUNSEL [ECF NO. 15]
JILL L. BURKHARDT, UNITED STATES MAGISTRATE JUDGE
10, 2017, Plaintiff filed with the Court a motion for
appointment of counsel. (ECF No. 15.) This is Plaintiff's
second motion for appointment of counsel. (See ECF
No. 6.) 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
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's prohibition against 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, as discussed in the Court's order denying
Plaintiff's first motion for appointment of counsel
(see ECF No. 13), 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, as previously explained to Plaintiff, at this early
stage of the case where 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 judgment).
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
argues in his motion that he should be appointed counsel
because he “take[s] a lot of psych medication for his
mental health problems” and is “not stable enough
to defendant himself, especial[l]y against a professional
like the DA.” (ECF No. 15 at 1.) Plaintiff states that
he has “been taking medication since the age of 13
years and in and out of hospitals for suicidal attempts on
[his] life.” (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 litigant is able to
articulate his claims in light of the complexity of the
issues involved, as Plaintiff is here, the exceptional
circumstances that might support the appointment of counsel
do not exist.