Buchanan v. Garza et al

Filing 131

ORDER Denying 130 Motion to Appoint Counsel. Signed by Magistrate Judge William V. Gallo on 8/9/2012. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WHITTIER BUCHANAN,

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Plaintiff,
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v.
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E. GARZA, et al.,
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Defendants.
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_____________________________________ )

Civil No. 08-CV-1290-BTM (WVG)
ORDER DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL
[Doc. No. 130]

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On July 26, 2012, Plaintiff filed a fourth Motion to Appoint Counsel. (Doc. No. 130.) On

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June 17, 2009, the Honorable Barry Ted Moskowitz, United States District Judge, denied Plaintiff’s

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first two Motions to Appoint Counsel. (Doc. No. 34.) On February 9, 2011, this Court denied

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Plaintiff’s third Motion to Appoint Counsel, finding that Plaintiff “has a sufficient grasp of his case,

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the legal issues involved, and is able to adequately articulate the basis of his Complaint.” (Doc. No.

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76 at 2.) In his instant Motion, Plaintiff simply regurgitates the same grounds for requesting counsel,

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but now asserts that he is entitled to the appointment of counsel because he has a heart condition,

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takes nitro tablets for pain, and experiences mood swings. (Doc. No. 130 at 1.) For the reasons stated

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below, Plaintiff’s Motion is DENIED.

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“[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust

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Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Thus, federal courts do

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not have the authority “to make coercive appointments of counsel.” Mallard v. United States District

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Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564,

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569 (9th Cir. 1995). However, district courts do have discretion, pursuant to 28 U.S.C. § 1915(e)(1),

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to “request” that an attorney represent indigent civil litigants upon a showing of exceptional

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circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).

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

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

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ability to articulate his claims ‘in light of the complexity of the legal issues involved.’” Agyeman,

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390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also

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

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The Court finds that Plaintiff’s First Amended Complaint (“FAC”) involves relatively

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straightforward claims related to the alleged use of excessive force against him, denial of meaningful

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access to the courts, and denial of medical treatment. (See Doc. No. 40.) Plaintiff’s FAC has

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survived the initial screening required by 28 U.S.C. § § 1915(e)(2) and 1915A, and also survived, in

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part, Defendants’ Motion to Dismiss. (Doc. No. 62.) Thus, this Court finds that Plaintiff has

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demonstrated the ability to articulate essential facts supporting his claims, and he appears to have an

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adequate grasp of his case, as well as the legal issues involved. (Doc. No. 40; See Terrell, 935 F.2d

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at 1017.)

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Further, the Court takes this opportunity to address Plaintiff’s conduct during a telephonic

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Settlement Conference held on July 20, 2012. During the Conference, Plaintiff was disrespectful to

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defense counsel and to the Court. The Court should not have to instruct parties, counsel, or pro se

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litigants on the proper way to behave while participating in judicial proceedings, and it certainly

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should not have to give a basic lesson on respect. Plaintiff is now on notice that another display of

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the condescending and rude behavior exhibited at the Conference will not be tolerated during any

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further interactions that Plaintiff may have with this Court.

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During the Conference, Plaintiff claimed to be in pain, and represented that he had just

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taken nitro tablets. Plaintiff asserts in his instant Motion that these are the new reasons that he must

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be appointed counsel. However, Plaintiff’s alleged pain and consumption of nitro tablets did not

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appear to diminish his vigor, nor his ability to strongly assert his position. Plaintiff was extremely

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combative throughout the Conference, but he argued his position clearly to the Court and defense

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counsel. Despite his claims of pain and the use of medication, Plaintiff appeared to be a very zealous

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advocate for himself.

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Because Plaintiff has not satisfied the standards required for an appointment of counsel in

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a civil action, Plaintiff’s Motion to Appoint Counsel is DENIED.

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IT IS SO ORDERED.

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DATED: August 9, 2012

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Hon. William V. Gallo
U.S. Magistrate Judge

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