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Alvarez v. S. Ko

United States District Court, S.D. California

July 24, 2017

DR. S. KO, M.D., et al., Defendants.


          Hon. Nita L. Stormes United States Magistrate Judge.

         Plaintiff 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.

         I. Plaintiff's Request for Appointment of Counsel

         Plaintiff 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.[1] 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.

         II. Legal Standard

         “[T]here 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).

         “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.' 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).

         III. Discussion

         Here, 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 discovery phase.

         A. 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).

         As 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.[2] 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.

         The 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.

         B. Plaintiff's Ability to ...

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