McElroy v. Cox et al

Filing 24

ORDER DENYING 23 Motion to Appoint Counsel signed by District Judge Jeffrey T. Miller on 10/19/2009. (Figueroa, O)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Procedural Background O n August 19, 2008, Plaintiff, an inmate currently incarcerated at California State Prison, S a c ra m e n to ("CSP-SAC"), in Represa, California and proceeding pro se, filed a civil rights C o m p la in t pursuant to 42 U.S.C. § 1983. Plaintiff also filed a Motion to Proceed In Forma P a u p e ris ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. The Court granted Plaintiff's M o tio n to Proceed IFP on August 21, 2008 [Doc. No. 4]. On November 26, 2008, the case was reassigned to this Court for all further proceedings [ D o c . No. 7]. On February 2, 2009, the Court screened Plaintiff's Complaint pursuant to 28 Defendants. R O Y COX, et al., vs. L A T W A H N McELROY, C D C R #P-71922, P l a in tif f , O R D E R DENYING PLAINTIFF'S M O T I O N TO APPOINT COUNSEL [Doc. No. 23] Civil No. 1:08cv01221 JTM (AJB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

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U .S .C . §§ 1915(e)(2) and 1915A(b) and directed the U.S. Marshal to effect service on Plaintiff's b e h a lf [Doc. No. 9]. On July 8, 2009, Defendants filed a Motion to Dismiss pursuant to F ED.R .C IV.P . 12(b), arguing that Plaintiff had failed to exhaust administrative remedies before f ilin g suit pursuant to 42 U.S.C. § 1997e(a) [Doc. No. 15]. On August 25, 2009, however, the C o u rt denied Defendants' Motion, finding they had"failed to adequately develop the record to s h o w Plaintiff did not properly exhaust." See Aug. 25, 2009 Order [Doc. No. 20] at 6. Thus, o n September 1, 2009, Defendants filed their Answer [Doc. No. 21]. On October 7, 2009, P lain t iff filed a Motion for Appointment of Counsel [Doc. No. 23]. II. M o tio n to Appoint Counsel " T h e re is no constitutional right to appointed counsel in a § 1983 action." Rand v. R o w la n d , 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9 th Cir. 1981)); see also Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) ("[T]here is no absolute right to counsel in civil proceedings.") (citation omitted). T h u s , federal courts do not have the authority "to make coercive appointments of counsel." M a l la r d v. United States District Court, 490 U.S. 296, 310 (1989); see also United States v. $ 2 9 2 ,8 8 8 .0 4 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to "request" th a t an attorney represent indigent civil litigants upon a showing of "exceptional circumstances." See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F .3 d at 1525. "A finding of the exceptional circumstances of the plaintiff seeking assistance re q u ire s at least an evaluation of the likelihood of the plaintiff's success on the merits and an e v a lu a tio n of the plaintiff's ability to articulate his claims `in light of the complexity of the legal is s u e s involved.'" Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1 3 3 1 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). T h e Court acknowledges that any pro se litigant "would be better served with the a ss is ta n c e of counsel." Rand, 113 F.3d at 1525 (citing Wilborn, 789 F.2d at 1331). However, s o long as a pro se litigant, like Plaintiff in this case, is able to "articulate his claims against the -2-

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re lativ e complexity of the matter," the "exceptional circumstances" which might require the a p p o in tm e n t of counsel do not exist. Id. (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner "m ay well have fared better-particularly in the realms of discovery and the securing of expert t e s t i m o n y. " ) . Here, Plaintiff requests appointment of counsel because he has no "legal education," " v e r y limited access ... to legal materials" and his case "contains several different legal claims" th a t may require discovery, depositions and expert testimony. See Pl.'s Mot. at 1-2. However, P lain tiff 's Complaint has already survived screening, which indicates his ability to sufficiently a rtic u la te the factual basis of his claims. See Agyeman, 390 F.3d at 1103. In addition, Plaintiff h a s successfully opposed Defendants' Motion to Dismiss by making legal arguments as well as p ro f f e rin g documentary evidence of his administrative appeals. See Pl.'s Opp'n to Defs.' Mot. to Dismiss [Doc. No. 17]. Accordingly, the Court finds that neither the interests of justice nor exceptional c irc u m s ta n c e s warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9 th Cir. 1987); Terrell, 935 F.2d at 1017. III. C o n c lu s io n and Order G o o d cause appearing, IT IS HEREBY ORDERED that Plaintiff's Motion to Appoint C o u n s e l [Doc. No. 23] is DENIED without prejudice. D A T E D : October 19, 2009 Hon. Jeffrey T. Miller United States District Judge

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