Miller v. Lamontagne et al

Filing 70

ORDER Denying Without Prejudice Plaintiff's Motion To Appoint Counsel (Re Doc. 66 ). Signed by Magistrate Judge Bernard G. Skomal on 5/11/2012. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JUSTIN THOMAS MILLER,

CASE NO. 10-CV-702-WQH
(BGS)
Plaintiff,

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ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S
MOTION TO APPOINT
COUNSEL

vs.
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JOHN LAMONTAGNE, Factory
Superintendent,

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Defendant.

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On April 27, 2012, nunc pro tunc to March 22, 2012, Plaintiff Justin Thomas Miller,

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a prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. §1983, filed

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a motion to appoint counsel. (Doc. No. 66.) This is Plaintiff’s third request to appoint counsel.

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(See Doc. Nos. 3 & 17.) On May 10, 2010, the Court denied Plaintiff’s first request (Doc. No.

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7) and on August 2, 2010 denied Plaintiff’s second request (Doc. No. 21). For the reasons set

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forth below, the Court DENIES WITHOUT PREJUDICE Plaintiff’s current motion for

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appointment of counsel.

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Plaintiff asserts he requires appointment of counsel because he is unable to afford

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counsel, his imprisonment will greatly limit his ability to litigate, the issues involved in this

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case are complex and will require significant research and investigation, he has limited access

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to the law library and limited knowledge of the law, and a trial in this matter will involve

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conflicting testimony and counsel would better enable Plaintiff to present evidence and cross-1-

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examine witness. (Doc. No. 66 at 1-2.) Plaintiff states that he has made repeated efforts to

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obtain a lawyer, which have been unsuccessful. (Id. at 2.)

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

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349,

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1353 (9th Cir. 1981)); see also Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360,

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1363 (9th Cir. 1994) (“[T]here is no absolute right to counsel in civil proceedings.”) (citation

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omitted). Thus, federal courts do not have the authority “to make coercive appointments of

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counsel.” Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see also United

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States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).

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

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“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.

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2004); Rand, 113 F.3d at 1525. “A finding of the exceptional circumstances of the plaintiff

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seeking assistance requires at least an evaluation of the likelihood of the plaintiff’s success on

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the merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the

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complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015,

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1017 (9th Cir. 1991).

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The Court denies Plaintiff’s request without prejudice, as neither the interests of justice

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nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley,

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827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. Plaintiff first requests the

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appointment of counsel because he cannot afford to hire an attorney. While the inability to

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afford counsel is one prerequisite to any request for appointment of counsel under section

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1915(e)(1), Plaintiff must also plead facts which show he has an insufficient grasp of his case

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or the legal issue involved and an inadequate ability to articulate the factual basis of his claim.

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Agyeman, 390 F.3d at 1103 (quoting Wilborn, 789 F.2d at 1331; see also Terrell, 935 F.2d at

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1017. Plaintiff has not made such a showing. Plaintiff’s arguments that he has limited

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knowledge of the law and that this case will involve research and investigation are not based
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on the complexity of the legal issues involved, but rather on the general difficulty of litigating

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pro se. See Wilborn, 789 F.3d at 1331 (noting that, “If all that was required to establish

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successfully the complexity of the relevant issues was a demonstration of the need for

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development of further facts, practically all cases would involve complex legal issues.”).

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Any pro se litigant “would be better served with the assistance of counsel.” Rand, 113

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F.3d at 1525 (citing Wilborn, 789 F.2d at 1331). Nonetheless, so long as a pro se litigant, like

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Plaintiff in this case, is able to “articulate his claims against the relative complexity of the

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matter,” the “exceptional circumstances” which might require the appointment of counsel do

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not exist. Id. (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court

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denied appointment of counsel despite fact that pro se prisoner “may well have fared better-

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particularly in the realms of discovery and the securing of expert testimony”); accord Palmer

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v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Plaintiff has thus far been able to articulate his

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claims against the relative complexity of the case, as the Court found that Plaintiff’s complaint

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contained allegations sufficient to survive the sua sponte screening required by 28 U.S.C.

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§§1915(e)(2) and 1915A(b) (see Doc. No. 7 at 4) and his claims against Defendant

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LaMontagne survived a motion to dismiss and are proceeding through discovery (see Doc. No.

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62). Further, Plaintiff’s assertions regarding presenting evidence and cross-examining

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witnesses at trial does not present an exceptional circumstance warranting appointment of

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counsel at this time, as this case is in the discovery phase and has not yet survived summary

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judgment. Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiff’s third request

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for appointment of counsel.

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IT IS SO ORDERED.
DATED: May 11, 2012
_________________________________
BERNARD G. SKOMAL
United States Magistrate Judge

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