Clack v. Latimer et al

Filing 23

ORDER denying w/o prejudice Plaintiff's 21 Motion for Appointment of Counsel. Signed by Magistrate Judge Ruben B. Brooks on 2/18/2009. (All non-registered users served via U.S. Mail Service).(jah)

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 v. SAN DIEGO SHERIFFS DEPARTMENT; DEPUTY LATIMER #3275; DEPUTY HOENIG #2840, Defendants. CHRISTOPHER CHARLES ALEXANDER CLACK, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv0624 IEG (RBB) ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL [DOC. NO. 21] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Plaintiff Christopher Clack, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights Complaint under 42 U.S.C. § 1983 on April 4, 2008 [doc. no. 1]. He alleged that his

constitutional right to be free from cruel and unusual punishment, right to freedom of association, and his right to medical care were violated while he was in custody. (Compl. 3-5.) Several months

later, Plaintiff submitted this Motion for Appointment of Counsel [doc. no. 21], which was filed nunc pro tunc to January 22, 2009. In support of his request for appointment of counsel, Clack asserts the following: (1) He is unable to afford an attorney; (2) 1
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the issues in his case are complex and will require research and investigation which will be difficult for him to perform;(3) a trial in his case will likely involve conflicting testimony; and (4) he has attempted but failed to secure counsel. Appointment of Counsel 1-3.) 28 U.S.C. § 1915(e)(1) provides: "The court may request an 28 (Mot. for

attorney to represent any person unable to afford counsel." U.S.C.A. § 1915(e)(1) (West 2009).

Yet, "it is well-established

that there is generally no constitutional right to counsel in civil cases." United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir.

1996) (citing Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994). There is also no constitutional Rand v.

right to appointed counsel to pursue a § 1983 claim.

Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); accord Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998). Federal courts do not

have the authority "to make coercive appointments of counsel." Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989)(discussing § 1915(d); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). Nevertheless, district courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1), to request attorney representation for indigent civil litigants upon a showing of exceptional circumstances. See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101,

1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 824 (9th Cir. 1989). 2

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A finding of the 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 articulate his claims "in light of the complexity of the legal issues involved." Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (citation omitted)). "`Neither of these

factors is dispositive and both must be viewed together before reaching a decision.'" 789 F.2d at 1332). I. Likelihood of Plaintiff's Success on the Merits To receive court-appointed counsel, Clack must present a nonfrivolous claim that is likely to succeed on the merits. Wilborn, 789 F.2d at 1331. Plaintiff's Complaint purports to state freedom Terrell, 935 F.2d at 1017 (quoting Wilborn,

three causes of action arising under the Constitution:

from cruel and unusual punishment, deliberate indifference to right to medical care, and interference with his right to free association. (Compl. 3-5.) In the Complaint, Plaintiff asserts

that on March 29, 2007, Defendant Latimer threw Clack's body and head to the floor until his chin was "split to the bone." 3.) (Id. at

Refusing to provide the Plaintiff medical care, Defendant

Latimer placed Clack in a cell to suffer until the next shift of deputies found Plaintiff and took him to the emergency room. at 4.) Plaintiff also alleges that Defendant Hoening aided (Id.

Defendant Latimer and prevented other inmates from assisting Clack, which violated his right to free association. (Id. at 5)

A plaintiff claiming excessive force under the Eighth Amendment must "allege . . . the unnecessary and wanton infliction of pain . . . ." Whitley v. Albers, 475 U.S. 312, 320 (1986). 3

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Plaintiff "is required to allege overt acts with some degree of particularity such that his claim is set forth clearly enough to give defendants fair notice of the type of claim being pursued." Ortez v. Wash. County, 88 F.3d 804, 810 (9th Cir. 1996) (citing Jones v. Cmty. Redev. Agency, 733 F.2d at 649). "A prison

official may be liable for failure to protect an inmate from a use of excessive force if he is deliberately indifferent to a substantial risk of serious harm to an inmate." Estate of Davis v.

Delo, 115 F.3d 1388, 1395 (8th Cir. 1997) (citations omitted); see also Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000). Two elements comprise an Eighth Amendment claim for deliberate indifference to serious medical needs. Jett v. Penner, 439 F.3d

1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). "First, the plaintiff must show a `serious medical

need' by demonstrating that `failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain."' omitted). Id. (citations

"Second, the plaintiff must show the defendant's Id. (citations

response to the need was deliberately indifferent." omitted).

The second prong, "is satisfied by showing (a) a

purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference." Id. (citations omitted). Although Plaintiff's allegations are sufficient to state a claim for relief, it is too early for the Court to determine Clack's likelihood of success on the merits. Without additional

factual information, the Court cannot conclude that Plaintiff is

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likely to succeed. 1993). II.

See Bailey, 835 F. Supp. 550, 552 (S.D. Cal.

Plaintiff's Ability To Proceed Without Counsel To be entitled to appointed counsel, Clack must also show he

is unable to effectively litigate the case pro se in light of the complexity of the issues involved. See Wilborn, 789 F.2d at 1331.

Courts have required that "indigent plaintiffs make a reasonably diligent effort to secure counsel as a prerequisite to the court's appointing counsel for them." F. Supp. at 552. Bailey v. Lawford, 835

Plaintiff has contacted at least four attorneys (Mot. for Appointment of Counsel

in an attempt to secure counsel. 2.)

He has made a reasonably diligent effort to secure counsel

prior to petitioning for appointment of counsel. Clack claims he is unable to afford outside legal counsel. (Id. at 1-3.) This argument is not compelling because indigence Plaintiff

alone does not entitle a plaintiff to appointed counsel.

further asserts that his placement in Centinela State Prison's D yard burdens his ability to adequately conduct research and prepare his case. (Id. at 2.) He claims there is no law library in his

particular yard, so his placement limits his access to legal materials necessary to pursue the case himself. (Id. at 2.) Based

on these facts, Plaintiff requests a court-appointed attorney. (Id. at 1-2.) Although Clack asserts that his access to legal materials is limited, he has not presented any facts demonstrating that he is being denied "reasonable" access. See Lindquist v. Idaho State Bd. "[T]he Constitution

of Corrs., 776 F.2d 851, 858 (9th Cir. 1985).

does not guarantee a prisoner unlimited access to a law library. 5

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Prison officials of necessity must regulate the time, manner, and place in which library facilities are used." Id. Plaintiff has

not shown that he is denied reasonable access to a law library or other means of conducting legal research, or that he is subjected to burdens beyond those ordinarily experienced by pro se plaintiffs. Plaintiff's Complaint is adequate in form. Clack was also

able to file an Motion for Appointment of Counsel, suggesting at least some ability to navigate the legal process. See Plummer v.

Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996) (finding the district court did not abuse its discretion in denying plaintiff counsel, in part because plaintiff adequately filed a complaint and other pretrial materials). "[A]ny pro se litigant certainly would be better served with the assistance of counsel." Rand, 113 F.3d at 1525; see also

Wilborn, 789 F.2d at 1331 (explaining, "a pro se litigant will seldom be in a position to investigate easily the facts necessary to support the case[]"). But Plaintiff is only entitled to

appointed counsel if he can show "that because of the complexity of the claims he [is] unable to articulate his positions." F.3d at 1525. Rand, 113

Clack has shown nothing in the record which makes

this case "exceptional" or the issues in it particularly complex. Additionally, factual disputes and anticipated crossexamination of witnesses do not indicate the presence of complex legal issues warranting a finding of exceptional circumstances. See Rand, 113 F.3d at 1525 (holding that while the appellant might have fared better with counsel during discovery and in securing expert testimony, "this is not the test[]"). 6 The "exceptional

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circumstances" required for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) are absent. Because Plaintiff has failed to demonstrate either a likelihood of success on the merits of his claims or an inability to represent himself (beyond the ordinary burdens encountered by prisoners representing themselves pro se), Plaintiff's motion is DENIED without prejudice. IT IS SO ORDERED.

Dated: February 18, 2009

______________________________ Ruben B. Brooks United States Magistrate Judge

cc:

Judge Gonzalez All Parties of Record

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