United States District Court, S.D. California
ORDER DENYING MOTION REQUESTING APPOINTMENT OF
COUNSEL [DOC. NO. 11.]
KAREN S. CRAWFORD UNITED STATES MAGISTRATE JUDGE.
Francisco Moreno, a state prisoner proceeding pre se
and in forma pauperis, filed this action pursuant to
Title 42, United States Code, Section 1983, alleging that
primary care physicians at the Richard J. Donovan
Correctional Facility were deliberately indifferent to his
serious medical needs when they denied him medical treatment
and intervention while he was experiencing chest pains,
difficulty breathing, and other serious medical problems.
[Doc. No. 1.] Before the Court is plaintiffs Motion
Requesting Appointment of Counsel. [Doc. No. 11] For the
reasons outlined more fully below, the Court finds that
plaintiffs Motion Requesting Appointment of Counsel must be
Motion Requesting Appointment of Counsel, plaintiff argues
that the Court should appoint counsel in this case for
several reasons. First, plaintiff has limited knowledge of
the law. Second, plaintiff is unable to afford counsel.
Third, plaintiff believes the issues in the case are complex
and will require significant research and investigation.
Fourth, his claims involve medical treatment. Fifth, trial is
likely to involve conflicting testimony, so an attorney would
"better enable plaintiff to present evidence and cross
examine witnesses, ". [Doc. No. 11, at p. 2.]
indigent's right to appointed counsel has been recognized
to exist "only where the litigant may lose his physical
liberty if he loses the litigation." Lassiter v.
Dep't of Soc. Servs. of Durham Cty., N. C, 452 U.S.
18, 25 (1981). District Courts generally lack authority to
require counsel to represent indigent prisoners in Section
1983 cases. Mallard v. U.S. Dist. Court for S. Dist. of
Iowa, 490 U.S. 296, 298-309 (1989). However, in certain
"exceptional circumstances," the Court may request
the voluntary assistance of counsel. Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
finding of exceptional circumstances requires an evaluation
of both the likelihood of success on the merits and the
ability of the petitioner to articulate his claims pro
se in light of the complexity of the legal issues
involved." Terrell, 935 F.2d at 1017 (internal
citations omitted). "Neither of these factors is
dispositive and both must be viewed together before reaching
a decision." Id. (internal citation omitted).
there is currently no basis to support a finding of
exceptional circumstances. First, the record is not
sufficiently developed, so the Court cannot determine the
likelihood of success on the merits. Second, there is nothing
from which the Court could conclude plaintiff lacks the
ability to articulate and prosecute his claims pro
se. Plaintiff has demonstrated a knowledge of the
essential facts supporting his claim, which appear relatively
straightforward and uncomplicated. Plaintiffs Complaint
survived the initial screening required by 28 U.S.C.
§§ 1915(e)(2) and 1915A, and an Answer has been
filed. [Doc. No. 5.] Therefore, plaintiff has clearly shown
an ability to effectively articulate his claims and
communicate with the Court in this action. [Doc. No. 5.]
Therefore, plaintiff has clearly shown an ability to
effectively articulate his claims and communicate with the
Court in this action.
a pro se prisoner's inability to afford an
attorney, standing alone, is not enough to show exceptional
circumstances. This and other hardships imposed by
incarceration "are difficulties which any litigant would
have in proceeding pro se; they do not indicate
exceptional factors." Wood v. Housewright, 900
F.2d 1332, 1335-1336 (9th Cir. 1990).
pro se litigants are afforded some leniency to
compensate for their lack of legal training. "In civil
rights cases where the plaintiff appears pro se, the
court must construe the pleadings liberally and must afford
plaintiff the benefit of any doubt." Jackson v.
Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal
citation omitted). This also applies to motions.
Bernhardt v. Los Angeles Cty., 339 F.3d 920, 925
(9th Cir. 2003). Accordingly, plaintiff s pro se
status will be taken into consideration by the Court when his
filings are reviewed.
on the foregoing, the Court finds that plaintiff has not
shown there are "exceptional circumstances" for the
appointment of counsel in the case. Accordingly, IT IS HEREBY
ORDERED that plaintiffs Motion ...