Nelson v. California State Department of Corrections and Rehabilitation

Filing 22

ORDER signed by Circuit Judge Marsha S. Berzon on 3/31/2011 DENYING 21 Motion to Appoint Counsel. (Zignago, K.)

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(PC) Nelson v. California State Department of Corrections and Rehabilitation Doc. 22 1 2 3 4 5 6 7 8 9 10 11 12 S.C. PECK, 13 Defendant. 14 15 Patrick Nelson is a California state prisoner proceeding pro se and in forma 16 pauperis with an action under 42 U.S.C. 1983. (Dkt. #1). On November 24, 2009, the 17 Court screened Nelson's complaint pursuant to 28 U.S.C. 1915A, ordering Defendant 18 Peck to answer Count 1 of the complaint and dismissing without prejudice the remaining 19 counts and defendants. (Dkt. #6). On December 9, 2009, Nelson moved the Court to 20 appoint counsel to represent him pursuant to 28 U.S.C. 1915(e)(1). (Dkt. #8). The 21 Court denied that request, explaining that Nelson had not shown that his needs and the 22 merits of this case constituted the kind of "exceptional circumstances" necessary to grant 23 his request for the appointment of counsel. (Dkt. #12 at 2). The denial, however, was 24 without prejudice, and the Court informed Nelson that he could renew his motion after 25 Defendant Peck filed his Answer and any preliminary motions were resolved. (Id. at 3). 26 27 28 vs. PATRICK OTIS NELSON, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 2:09-cv-00140-MSB IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ORDER 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 Now pending before the Court is Nelson's renewed motion for the appointment of counsel. (Dkt. #21).1 As the Court has previously explained, "there 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 designate counsel to represent an indigent civil litigant" upon a finding of "exceptional circumstances." Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quotation omitted). "A 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. Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (internal quotation omitted). As justification for the appointment of counsel, Nelson's motion repeats many of the same grounds contained in his previous motion, including that he needs the assistance of counsel to conduct discovery, to secure expert witnesses, and to respond to motions. (Dkt. #21 at 12). Nelson also reiterates that he lacks formal education and training in the law. (Id. at 1). Although the Court appreciates that prosecuting a case pro se is difficult, and that the assistance of counsel would likely benefit Nelson, he has not made the requisite showing of probable success on the merits or that he is unable to articulate his claims pro se due to the complexity of his case. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (denying plaintiff's motion to appointment of counsel despite the fact that "had he had the assistance of counsel during the early stages of the proceedings, he may well have fared better-particularly in the realms of discovery and the securing of expert testimony"), partially overruled on other grounds by 154 F.3d 952 (9th Cir. 1998) (en banc). In short, Nelson has not shown that "exceptional circumstances" justify the appointment of counsel, and therefore his motion is denied. Wilborn, 789 F.2d at 1331. Nelson may renew his motion for the appointment of counsel after any preliminary 1 Defendant Peck has filed his Answer (Dkt. #19), but no preliminary motions have been made. -2- 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 motions are resolved, but the Court emphasizes that it cannot appoint counsel unless Nelson demonstrates a substantial likelihood that he is likely to succeed on the merits of his claim and that he is unable to prosecute the case because the legal issues involved are too complex. Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion to appoint counsel is denied without prejudice. (Dkt. #21). DATED this 31st day of March, 2011. /s/ Marsha S. Berzon MARSHA S. BERZON United States Circuit Judge, sitting by designation -3-

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