United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT
OF COUNSEL (ECF NO. 46)
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. ECF No. 1. This is Plaintiff's
second request for appointment of pro bono counsel.
See, ECF Nos. 34, 46.
Plaintiff's Request for Appointment of Counsel
asks this Court to appoint him counsel from the Court's
pro bono panel. ECF No. 46. He argues the Court should
appoint counsel because (1) he cannot afford counsel, (2) the
case is complex, (3) does not have ready access to a law
library and (4) he lacks legal training in the law.
Id. at 1-2. Plaintiff concedes he has a good grasp of
basic litigation procedure, but argues that he has
articulated his claim thus far at great cost and due to his
high school education and will not be able to effectively
present his case through the course of the discovery and
pre-trial. Id. at 13, 19. Plaintiff argues that his
survival of the pleading challenges demonstrates a likelihood
of success on the merits. Id. at 18.
Plaintiff also raises concern regarding expert retention and
believes appointed counsel would be able to retain a medical
expert, which Plaintiff argues will help his case.
Id. at 19.
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).
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).
there has not been a substantial change in circumstances from
the previous request for appointment of counsel, which was
decided by the Court just 3 months ago following the
Magistrate's Judge's Recommendation that the
Defendants' motion to dismiss be denied. ECF No. 36.
Since that time, the only change is that the District Judge
has adopted that recommendation and the case entered the
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).
before, there is very little before the Court regarding the
merits of Plaintiff's case other than the allegations in
the Complaint, which Plaintiff re-states in substantial part.
See ECF No. 46 at 7-10. Plaintiff primarily points
to the Court's order denying the Defendants' motion
to dismiss as indicative of a likelihood of
success. Id. at 15-17. Plaintiff also
offers several exhibits for the Court's review to support
his position, including Dr. Ko's notes and dictations as
well as EKG/ECG readings. Id., Exs. A-D.
exhibits provided by Plaintiff cut both ways with respect to
likelihood of success. Dr. Ko's notes and dicatations
indicate, as Plaintiff suggests, that Dr. Ko recommended
continuation of the same treatment plan despite
Plaintiff's protests that it was not effective for his
pain. Id. at 16, Exs. A-B. However, Dr. Ko's
notes and dictations also indicate that Plaintiff's
condition was improving; that Plaintiff was not following the
treatment plan; and that Dr. Ko ordered and reviewed the
EKG's and found them to be “unremarkable.”
Id. at Exs. A-B. The evidence presented is
conflicting, and so Plaintiff does not demonstrate a
likelihood of success at trial based on this limited
evidence. The first Wilborn factor is not satisfied.
Plaintiff's Ability to ...