Roman v. Adams et al

Filing 140

ORDER denying 133 Plaintiff's Motion to Appoint Counsel. Signed by Magistrate Judge David H. Bartick on 5/1/12. (All non-registered users served via U.S. Mail Service)(lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ISIDRO ROMAN,

Civil No.

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Plaintiff,
v.
DERRAL G. ADAMS, et al.,

07cv1343-JLS (DHB)

ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL
[ECF No. 133]

Defendant.

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On April 16, 2012, Plaintiff Isidro Roman, a state prisoner proceeding pro se, filed a Motion for

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Appointment of Counsel. (ECF No. 133.) Plaintiff contends that although “he has an understanding

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of some of what is going on with his case, he simply does not have a full grasp of what the Court is

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asking for him to do.” (Id. at 2:5-7.) Further, Plaintiff contends that due to recent staff cutbacks at the

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prison where Plaintiff is incarcerated, “Plaintiff does not even know when and how he will be able to

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gain law library access.” (Id. at 2:11-13.) In support of this contention, Plaintiff filed the Sworn

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Declaration of Troy Anthony Rhodes (“Rhodes Decl.”) in which Mr. Rhodes, an employee of the law

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library at the Substance Abuse Treatment Facility, located in Corcoran, California (D Facility), states

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that major changes are occurring with the library system throughout the Substance Abuse Treatment

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Facility due to staff cutbacks, and that effective March 29, 2012, the D Facility law library will be shut

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down until a new library program can be instituted. (Rhodes Decl., at ¶ 3.) Plaintiff also contends that

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he has a “very limited” legal education. (ECF No. 133 at 2:15-16.)

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“There is no constitutional right to appointed counsel in a § 1983 action.” Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); see
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07cv1343-JLS (DHB)

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also Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (“[T]here is

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no absolute right to counsel in civil proceedings.”) (citation omitted). Thus, federal courts do not have

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the authority “to make coercive appointments of counsel.” Mallard v. United States District Court, 490

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U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir.

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1995).

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Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to “request” that

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an attorney represent indigent civil litigants upon a showing of exceptional circumstances. See Agyeman

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v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525. “A

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finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation

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of the likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to

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articulate his claims ‘in light of the complexity of the legal issues involved.’” Agyeman, 390 F.3d at

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1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer,

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

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Here, Plaintiff asserts he lacks a full understanding of this action and that his access to the prison

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law library has been limited. However, Plaintiff has not demonstrated facts which show that he has an

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insufficient grasp of his case or the legal issues involved, nor has he demonstrated an inadequate ability

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to articulate the factual basis of his claim. First, Plaintiff’s pro se pleading survived the initial screening

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provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Second, the Court’s docket reflects that Plaintiff

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effected service of his Complaint and summons upon Defendants via the U.S. Marshal. See 28 U.S.C.

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§ 1915(d). Third, the docket reflects Plaintiff’s Third Amended Complaint and operative Fourth

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Amended Complaint each partially survived a Motion to Dismiss. Fourth, Plaintiff’s Fourth Amended

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Complaint comprises claims of deliberate indifference and retaliation—none of which are particularly

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“complex” or unique prison conditions claims under 42 U.S.C. § 1983. Cf. Agyeman, 390 F.3d at 1103-

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04. Finally, Mr. Rhodes sworn statement indicates that he believes the librarian from the E Facility

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“will be running the D Facility library on a [sic] every other day basis.” (Rhodes Decl., at ¶ 4.)

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07cv1343-JLS (DHB)

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Accordingly, under the circumstances of this case, the Court finds that Plaintiff has not shown

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the “exceptional circumstances” required for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1)

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and therefore DENIES without prejudice Plaintiff’s Motion for Appointment of Counsel.

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IT IS SO ORDERED.
DATED: May 1, 2012

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DAVID H. BARTICK
United States Magistrate Judge

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07cv1343-JLS (DHB)