Hernandez v. Banner Boswell Medical Center et al

Filing 45

ORDER denying 43 Motion to Appoint Counsel. Signed by Magistrate Judge Eileen S Willett on 7/9/18. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ruben Guzman Hernandez,
Plaintiff,

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Banner Boswell Medical Center, et al.,

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ORDER

v.

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No. CV-16-04238-PHX-GMS (ESW)

Defendants.

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Plaintiff Ruben Guzman Hernandez, who is confined in the Arizona State Prison

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Complex-Red Rock Correctional Center, filed a First Amended pro se civil rights

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Complaint pursuant to 42 U.S.C. § 1983 (Doc. 12). The Court ordered Defendants

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Greenbaum and McCraken to answer Count One. Defendants fully briefed Motion for

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Summary Judgment (Doc. 34) is currently pending before the Court.

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On June 20, 2018, Plaintiff filed a Motion for Appointment of Counsel (Doc. 43).

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Plaintiff requests that the Court appoint Plaintiff counsel because Plaintiff (i) cannot

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afford to hire an attorney, (ii) is incarcerated with limited access to legal materials and

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limited knowledge of the law, (iii) has been unable to obtain counsel, and (iv) asserts the

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issues in his case are complex.

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There is no constitutional right to the appointment of counsel in a civil case. See

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Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of

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Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). “However, a court

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may under ‘exceptional circumstances’ appoint counsel for indigent civil litigants

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pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

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2009) (quoting Agyeman v. Coors. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)).

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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his

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claims pro se in light of the complexity of the legal issues involved.’” Palmer, 560 F.3d

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at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). See also Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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dispositive and instead must be viewed together.” Palmer, 560 F3.d at 970 (citing

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

“Neither of these considerations is

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Having considered both elements, Plaintiff has not shown that exceptional

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circumstances are present that would require the appointment of counsel in this case.

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Plaintiff has not demonstrated a likelihood of success on the merits, nor has he shown

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that he is experiencing difficulty in litigating this case because of the complexity of the

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issues involved. Plaintiff’s continued filings with the Court, as well as the instant

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motion, indicate that Plaintiff remains capable of navigating his proceedings and

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presenting arguments to the Court. See Wilborn, 789 F.2d at 1331 (“If all that was

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required to establish successfully the complexity of the relevant issues was a

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demonstration of the need for development of further facts, practically all cases would

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involve complex legal issues.”). Plaintiff remains in a position no different than many

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pro se prisoner litigants. Having failed to show that any exceptional circumstances are

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present, Plaintiff’s request for appointment of counsel will be denied.

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For the reasons set forth herein,

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IT IS ORDERED denying Plaintiff’s Motion for Appointment of Counsel (Doc.

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43).
Dated this 9th day of July, 2018.

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Honorable Eileen S. Willett
United States Magistrate Judge

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