Del Muro v. Arriola et al

Filing 104

ORDER Denying 85 Motion to Appoint Counsel without Prejudice. Signed by Magistrate Judge William McCurine, Jr on 8/16/2012. (All non-registered users served via U.S. Mail Service)(knb) (jrl).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALBERTO JOSE DEL MURO, BOP
#40467-198,

CASE NO. 09cv2571 JM (WMc)

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[ DOC. NO. 85]

Plaintiff,
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vs.
FERNANDO A. ARRIOLA, ROBERT E.
McFADDEN, HARRELL WATTS, J.
VILLANSENOR,
Defendants.

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On July 16, 2012, Plaintiff, a state prisoner proceeding pro se, filed a third motion for

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appointment of counsel in this civil rights action pursuant to 42 U.S.C. § 1983. [Doc. No. 85.] In his

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civil rights complaint, Plaintiff alleges deliberate medical indifference under the Eighth Amendment.

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[Second Amended Complaint, Doc. No. 6.] Plaintiff has filed a renewed motion for appointment of

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counsel stating in various affidavits filed with the Court that he cannot speak or write well in English,

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and (2) is unfamiliar with the law. [ECF. Nos. 85, 87, 95, 97, and 99.]

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There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Social Services,

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452 U.S. 18, 25 (1981). The Court may request an attorney to voluntarily represent a person

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proceeding in forma pauperis who is unable to afford counsel. 28 U.S.C. § 1915(d). However, such

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a request may only be made under section 1915 in “exceptional circumstances.” Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991)(citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986)). A determination of exceptional circumstances requires the Court’s consideration of: (1) the

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likelihood of success on the merits, and (2) the ability of the Plaintiff to state his claims pro se in light

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09cv2571 JM (WMc)

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of the complexity of the legal issues involved. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.

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1997). Neither the need for discovery, nor the fact the pro se litigant would be better served with the

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assistance of counsel require a finding of exceptional circumstances. Id. Both of the exceptional

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circumstances factors must be considered together before reaching a decision and neither is

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dispositive. See Rand, 113 F.3d at 1525; Terrell, 935 F.2d at 1017; Wilborn, 789 F.2d at 1331.

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The Court does not find the required exceptional circumstances exist in the instant case.

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Plaintiff’s likelihood of success in demonstrating deliberate indifference is low in light of the fact that

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inadequate treatment due to “mere medical malpractice” or even gross negligence, does not amount

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to a constitutional violation. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Wood v. Housewright, 900

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F.2d 1332, 1334 (9th Cir. 1990). Moreover, a difference of opinion between the prisoner and his

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doctors does not constitute deliberate indifference. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

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1996). In addition, plaintiff has repeatedly demonstrated his ability to adequately present his

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arguments to the Court. The exceptional circumstances factors do not favor a request for appointment

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of counsel at this time. Accordingly, Plaintiff’s motion for appointment of counsel is DENIED

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without prejudice.

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IT IS SO ORDERED.
DATED: August 16, 2012

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Hon. William McCurine, Jr.
U.S. Magistrate Judge, U.S.District Court

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09cv2571 JM (WMc)