United States District Court, S.D. California
HUMBERTO I. MIRANDA, Plaintiff,
RAYMOND MADDEN et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO APPOINT
COUNSEL [DOC, 3.]
Bermudez Montenegro, Judge
HUMBERTO I. MIRANDA ("Plaintiff), a California prisoner
proceeding in pro per and in forma
pauperis, has filed a Motion to Appoint Counsel (the
"Motion") pursuant to 28 U.S.C. §
1915(e)(1). The grounds for the Motion are that:
Plaintiff is unable to employ counsel; the issues involved in
this matter are complex; and it is difficult for Plaintiff to
understand how to further proceed; serious and complex
discovery proceedings are necessary; Plaintiffs access to
legal books and materials is limited due to his
incarceration; Plaintiff has very little legal knowledge or
experience; and, the interests of justice and judicial
economy are best served by the appointment of counsel. (Doc.
3, at 3-4.)
has filed a lawsuit pursuant to 42 U.S.C. § 1983 against
several California Department of Corrections and
Rehabilitation employees working at Centinela State Prison
("Centinela") and Pelican Bay State Prison
("Pelican Bay"). (Doc. 1.) Plaintiff alleges that
on August 22, 2015 during a visit with his girlfriend in the
Facility C visiting room at Centinela, a portion of the
ceiling collapsed on his head, face, neck, and back. (Doc. 1,
at 14-15.) Plaintiff allegedly asked Defendants Ramirez and
Flores (correctional officers assigned to the visiting room)
for medical aid, but Ramirez and Flores laughed and called
Plaintiff a liar. (Doc. 1, at 17-18.) When Ramirez and Flores
eventually called medical staff, the responding nurse
Defendant John Doe told Plaintiff-without examining him- that
his pain would subside and that he would be seen the next
day. (Doc. 1, at 19.) Additionally, an unnamed staff member
informed Plaintiff that Defendant Warden Raymond Madden would
be notified of the incident and Defendant Health Care CEO
Kevin Reilly would provide medical care. (Doc. 1, at 19.)
Despite these assurances, J Plaintiff did not receive proper
care for his injuries until his transfer to Calipatria State
Prison ("Calipatria") more than a year later. (Doc.
1, at 21-22.) X-rays taken at Calipatria on November 22, 2016
allegedly showed a predisposition to rotator cuff injury.
(Doc. 1, at 22.)
2017 transfer to Pelican Bay, Plaintiff came under the care
of Defendant Dr. Nancy Adam. (Doc. 1, at 22.) Plaintiff
allegedly complained to Dr. Adam about his
continually-worsening shoulder injury, which now comprised a
limited range of motion and severe pain, but she denied him
physical therapy, an X-ray, and an MRI. (Doc. 1, at 22.) Two
years passed before Dr. Adam ordered an MRI, the results of
which showed "rotator cuff tendonitis with an abnormal
high signal within the superior labrum.
Torn labrum with associated cyst, AC Joint arthropathy with
lateral downsloping acromion." (Doc. 1, at 22-23.)
Although Plaintiff eventually received surgery, he will not
regain function in his right arm "for another year if
ever." (Doc. 1, at 23.) Plaintiff alleges Eighth
Amendment causes of action against Flores, Ramirez, and
Madden for their failure to protect Plaintiff against the
ceiling collapse, and against all named defendants for their
failure to provide adequate medical care. (See Doc.
1.) Plaintiff seeks compensatory damages in the amount of
$250, 000, punitive damages in the amount of $100, 000
against each defendant, and a declaration that the
defendants' acts and omissions violated Plaintiffs
constitutional rights. (Doc. 1, at 24-25.)
a person has no right to counsel in civil actions. See
Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.
1981). However, a court may under "exceptional
circumstances" appoint counsel for indigent civil
litigants pursuant to 28 U.S.C. § 1915(e)(1).
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." Weygandt v. Look, 718 F.2d 952, 954
(9th Cir. 1983). Neither of these considerations is
dispositive but instead must be viewed together. Wilborn
v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
"rarely" will a federal court find a case to be so
complex that it is appropriate to appoint counsel for a civil
litigant who faces no loss of liberty in the controversy at
hand. See Dotson v. Doctor, 2014 U.S. Dist. LEXIS
72791, *1 n.1 (E.D. Cal. May 28, 2014) ("[c]ounsel is
appointed in civil cases such as this only rarely, if
exceptional circumstances I exist"); United States
v. Melluzzo, 2010 U.S. Dist. LEXIS 53053, *3 (D. Ariz.
May 3, 2010) ("appointment of counsel in a civil case is
rarely invoked . . . "); see also Schwartzmiller v.
Roberts, 1994 U.S. Dist. LEXIS 1620 *3 n.1 (D. Or. Feb.
11, 1994) ("[i]t is extremely rare that indigent civil
defendants are appointed counsel in judicial
the Court does not find that "exceptional
circumstances" exist to justify the appointment of
counsel at this time. Agyeman, 390 F.3d at 1103. It
is difficult to determine Plaintiffs likelihood of success on
the merits of his claims because litigation is only in the
pleading stage. However, if Plaintiff produces evidence to
support the allegations in the Complaint, it is possible he
could succeed. If the case proceeds beyond summary judgment,
the Court would be in a better position to determine
Plaintiffs likelihood of success on the merits.
Plaintiff has shown the ability to articulate his claims pro
se in light of the complexity of legal issues involved.
Weygandt, 718 F.2d at 954. Plaintiff claims
violations of the Eighth Amendment tied to the collapse of a
ceiling at a Centinela visiting room and subsequent lack of
medical care to treat his injuries. (Doc. 1.) His Complaint
is written clearly and is capable of being understood,
notwithstanding the fact he is incarcerated and has very
little legal knowledge or experience.
the early stage of the litigation and Plaintiffs ability to
clearly articulate his claims pro se, the Court does not find
that exceptional circumstances exist to justify the
appointment of counsel at this time. Wilborn, 789
F.2d at 1331. To the extent this case proceeds beyond summary