Nelson v. California State Department of Corrections and Rehabilitation
Filing
12
ORDER denying 8 Motion to Appoint Counsel signed by Circuit Judge Marsha S. Berzon on 4/5/2010. (Matson, R)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 P a tric k Nelson is a California state prisoner proceeding pro se with an action under 17 4 2 U.S.C. § 1983. (Dkt. #1). On November 24, 2009, the Court screened Nelson's 18 c o m p l a in t pursuant to 28 U.S.C. § 1915A, ordering Defendant Peck to answer Count 1 of 19 th e complaint and dismissing without prejudice the remaining counts and defendants. 20 (Dkt. #6). The Court also granted Nelson leave to file an amended complaint. (Id. at 8). 21 Nelson now moves the Court to appoint counsel to represent him pursuant to 28 U.S.C. § 22 23 24 25 26 27 28 O n December 21, 2009, Nelson filed a "notice" stating that he has been denied access to the law library since December 1, 2009 and was denied access to his "legal material" from D e c em b e r 1 to December 17, because he has "been placed in administrative segregation p e n d in g ICC review of [his] allegation of unnecessary force . . . ." (Dkt. #10). It is unclear w h e th e r Nelson is requesting additional time to file an amended complaint pursuant to, and in compliance with, the Court's November 24, 2009 order. If so, Nelson may file a motion
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I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA
PATRICK OTIS NELSON,
) ) Plaintiff, ) ) vs. ) ) C A L I F O R N I A DEPARTM E N T OF ) C O R R E C T IO N S , S. C. PECK, D. K.) S IS T O , SINGH, M. CHIRILA, PICCO,) W IF L , K. PANLY, R. KNUDSEN, and ) J O H N DOES 1-100, ) ) D e f e n d a n ts . ) )
C a s e No. 2:09-cv-00140-MSB ORDER
1 9 1 5 (e )( 1 ). 1 (Dkt. #8).
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" [ T ]h e re is no constitutional right to appointed counsel for § 1983 claims . . . ." Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981) (citation omitted). Nonetheless, 28 U.S.C. § 1915(e)(1) "confers on a district court the discretion to d e sig n a te counsel to represent an indigent civil litigant" upon a finding of "exceptional c irc u m s ta n c es ." Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quotation o m itte d ). "A finding of exceptional circumstances requires an evaluation of both the lik e lih o o d of success on the merits [and] the ability of the petitioner to articulate his c la im s pro se in light of the complexity of the legal issues involved. Neither of these is s u e s is dispositive and both must be viewed together before reaching a decision." Id. (in tern a l quotation omitted). N e ls o n contends that appointment of counsel is warranted in this case because (1) " [ c]o u n s e l is needed to marshal and compile the multifarious motions etc . . . correlative w ith the instant action," (2) "[c]ounsel is needed to conduct discovery in this complex c a se , secure expert witness testimony and respond to the various lodgements proffered by th e defendants," and (3) Nelson "has no formal education." (Dkt. #8 at 1-2). The need f o r investigation and expert testimony alone, however, does not warrant a finding of e x c e p tio n a l circumstances. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (d e n yin g plaintiff's motion to appointment of counsel despite the fact that "had he had the a ss is ta n c e of counsel during the early stages of the proceedings, he may well have fared b etter-p articu larly in the realms of discovery and the securing of expert testimony"), p a r tia lly overruled on other grounds by 154 F.3d 952 (9th Cir. 1998) (en banc). Additionally, Nelson has not has not made the requisite showing of probable success on th e merits and an inability to articulate his claims pro se in light of the complexity of the leg a l issues involved in this case. Moreover, the Court concludes that it is appropriate to re c eiv e Defendant Peck's Answer to Nelson's Complaint, and resolve any potential
f o r extension of time to file an amended complaint, requesting additional time to amend his c o m p l a in t and setting forth the reason(s) why Nelson was unable to timely comply with the C o u rt's November 24 order. -2-
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p relim in ary motions, prior to considering appointment of counsel. Therefore, Nelson's m o tio n will be denied without prejudice. Nelson may renew his request for appointment o f counsel after Defendant Peck has filed his Answer and any preliminary motions have b e e n resolved. A c c o r d in g l y , I T IS HEREBY ORDERED that Plaintiff's motion to appoint counsel is denied w ith o u t prejudice. (Dkt. #8).
D A T E D this 5th day of April, 2010.
/s/ Marsha S. Berzon MARSHA S. BERZON United States Circuit Judge, sitting by designation
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