Hoffmann v. Corning Police Department

Filing 120

ORDER signed by Magistrate Judge Kendall J. Newman on 4/12/18 DENYING 116 Motion to Appoint Counsel and DENYING 117 request for telephonic appearance. The 5/10/18 hearing is vacated. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBIN LEE HOFFMANN,

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Plaintiff,

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v.

No. 2:14-cv-2736 MCE KJN P

ORDER

JUSTIN JOURDAN, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has filed a second

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motion for appointment of pro bono counsel, and noticed it for hearing on May 10, 2018, before

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the undersigned. Plaintiff also seeks permission to appear by telephone.

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Plaintiff acknowledges that there is no constitutional right to a lawyer in civil cases, but

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argues that under 28 U.S.C. § 1915(e)(1), a district court may request an attorney to represent a

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person proceeding in forma pauperis, and is unable to afford counsel. She argues the legal issues

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are complex, and she is not familiar with the rules of evidence. Plaintiff contends that discovery

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is needed, and that factual investigation is necessary, which she cannot pursue, but she concedes

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the case will likely turn on credibility determinations. Plaintiff argues that her mental disability

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and long-term injuries hinder her ability to litigate this case. She is not an attorney and has no

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legal training or experience in cross-examining witnesses or presenting complicated evidence.

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Finally, plaintiff declares that:
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I understand that if a lawyer volunteers to represent me and my
lawyer learns that I can afford to pay for a lawyer, the lawyer can
give this information to the Court. I hereby waive my privilege of
attorney-client confidentiality to the extent necessary for my Pro
Bono attorney to make an application to be relieved as provided.
(ECF No. 116 at 2.)
A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983

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civil rights cases. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances, the district court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). “Neither of these

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considerations is dispositive and instead must be viewed together.” Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009), citing Wilborn, 789 F.2d at 1331.

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In the present case, the court does not find the required exceptional circumstances.

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Plaintiff has been able to articulate her claims pro se; indeed, her case has survived defendants’

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motion to dismiss and motion for summary judgment. As previously noted, despite plaintiff’s

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alleged mental disability, her court filings have been clearly written, her opposition to the motion

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for summary judgment was timely and complied with the court’s local rules, and during in-court

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hearings she has zealously advocated for her position. (ECF No. 76 at 3.) In Palmer, the court

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found that where a pro se civil rights plaintiff demonstrates a good handling of the general

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litigation procedure and has articulated claims adequately, exceptional circumstances are not

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shown to warrant appointment. Id., 560 F.3d at 970.

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Here, the jury will be charged with deciding whether defendants Bassett, Jourdan, and Hill
used excessive force, and whether such defendants committed assault and battery on plaintiff in
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violation of California state law, as well as whether defendant Fears failed to protect plaintiff.

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As plaintiff recognizes, this case will largely turn on the witnesses’ credibility. Thus, the legal

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issues involved in the resolution of this case are not particularly complex. Although such claims

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survived summary judgment, it is unclear whether plaintiff is likely to succeed at trial.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet her burden of demonstrating exceptional circumstances warranting the appointment of

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counsel. In addition, plaintiff is reminded that discovery is closed. Her pretrial statement is due

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on or before May 4, 2018. (ECF No. 113.)

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 116) is denied;

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2. The May 10, 2018 hearing is vacated; and

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3. Plaintiff’s request for telephonic appearance (ECF No. 117) is denied.

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Dated: April 12, 2018

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/hoff2736.31b

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