Burns v. Decarr et al

Filing 70

ORDER denying 69 Motion to Appoint Counsel. Signed by Judge Janis L. Sammartino on 7/18/11. (All non-registered users served via U.S. Mail Service)(lmt) (jrl).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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NELSON C. BURNS,

CASE NO. 07-CV-1984 JLS (WMc)
Plaintiff,

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ORDER: DENYING MOTION TO
APPOINT COUNSEL

vs.
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Defendants.

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(ECF No. 69)

DECARR, CROOK, VISTA DETENTION
FACILITY, VISTA SHERIFF’S
DEPARTMENT,

On October 31, 2007, Magistrate Judge William McCurrine denied Plaintiff’s initial request
for appointment of counsel. (ECF Nos. 3, 5.) On February 24, 2011, Plaintiff submitted a second
request for appointment of counsel. (Mot., ECF No. 69.) After considering Plaintiff’s submission,
the Court finds that Plaintiff has failed to demonstrate that new “exceptional circumstances” exist to
justify appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). Accordingly, Plaintiff’s motion
is DENIED.
There is no constitutional right to appointed counsel for § 1983 claims. Campbell v. Burt, 141
F.3d 927, 931 (9th Cir. 1998). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts have
discretion to appoint counsel to represent indigent litigants. This discretion may be exercised only
under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A
finding of exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation
of the likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to
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07cv1984

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articulate his claims ‘in light of the complexity of the legal issues involved.’” Agyeman v. Corr. Corp.

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of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir. 1986)).

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Plaintiff requests counsel because this case involves complex legal issues and “at-all-times

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[sic] Plaintiff has strictly relied upon the assistance of” fellow prisoners to prosecute the action. (Mot.

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5.) Plaintiff submits that he has “absolutely no understanding as how to effectively prosecute this

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matter.” (Burns Decl., ECF No. 69.)

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Having reviewed Plaintiff’s factual assertions and arguments, the Court finds no basis for

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reversing its prior decision. Contrary to Plaintiff’s assertion, this is not a complex case. Plaintiff

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complains that Defendants denied him access to necessary medical care and used excessive force

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against him. (Compl. 3, ECF No. 1.) And regardless of whether Plaintiff’s fellow inmates assisted

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him in filing and prosecuting this action, Plaintiff has adequately articulated his claims pro se such

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that the Court can discern both the factual and legal basis of his claims. Indeed, Plaintiff prevailed,

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in part, against Defendants’ motion for summary judgment. (ECF No. 47.) Thus, it appears Plaintiff

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has a more than sufficient grasp of his case and the legal issues involved, and no exceptional

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circumstances exist to justify appointment of counsel. Accordingly, Plaintiff's second motion for

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appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) is DENIED.

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IT IS SO ORDERED.

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DATED: July 18, 2011
Honorable Janis L. Sammartino
United States District Judge

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07cv1984