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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUSTIN THOMAS MILLER, CASE NO. 10-CV-702-WQH (BGS) Plaintiff, 12 ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO APPOINT COUNSEL vs. 13 14 JOHN LAMONTAGNE, Factory Superintendent, 15 Defendant. 16 17 On April 27, 2012, nunc pro tunc to March 22, 2012, Plaintiff Justin Thomas Miller, 18 a prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. §1983, filed 19 a motion to appoint counsel. (Doc. No. 66.) This is Plaintiff’s third request to appoint counsel. 20 (See Doc. Nos. 3 & 17.) On May 10, 2010, the Court denied Plaintiff’s first request (Doc. No. 21 7) and on August 2, 2010 denied Plaintiff’s second request (Doc. No. 21). For the reasons set 22 forth below, the Court DENIES WITHOUT PREJUDICE Plaintiff’s current motion for 23 appointment of counsel. 24 Plaintiff asserts he requires appointment of counsel because he is unable to afford 25 counsel, his imprisonment will greatly limit his ability to litigate, the issues involved in this 26 case are complex and will require significant research and investigation, he has limited access 27 to the law library and limited knowledge of the law, and a trial in this matter will involve 28 conflicting testimony and counsel would better enable Plaintiff to present evidence and cross-1- 10cv702-WQH 1 examine witness. (Doc. No. 66 at 1-2.) Plaintiff states that he has made repeated efforts to 2 obtain a lawyer, which have been unsuccessful. (Id. at 2.) 3 “There is no constitutional right to appointed counsel in a § 1983 action.” Rand v. 4 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 5 1353 (9th Cir. 1981)); see also Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 6 1363 (9th Cir. 1994) (“[T]here is no absolute right to counsel in civil proceedings.”) (citation 7 omitted). Thus, federal courts do not have the authority “to make coercive appointments of 8 counsel.” Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see also United 9 States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). 10 Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to 11 “request” that an attorney represent indigent civil litigants upon a showing of “exceptional 12 circumstances.” See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 13 2004); Rand, 113 F.3d at 1525. “A finding of the exceptional circumstances of the plaintiff 14 seeking assistance requires at least an evaluation of the likelihood of the plaintiff’s success on 15 the merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the 16 complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. 17 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 18 1017 (9th Cir. 1991). 19 The Court denies Plaintiff’s request without prejudice, as neither the interests of justice 20 nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 21 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. Plaintiff first requests the 22 appointment of counsel because he cannot afford to hire an attorney. While the inability to 23 afford counsel is one prerequisite to any request for appointment of counsel under section 24 1915(e)(1), Plaintiff must also plead facts which show he has an insufficient grasp of his case 25 or the legal issue involved and an inadequate ability to articulate the factual basis of his claim. 26 Agyeman, 390 F.3d at 1103 (quoting Wilborn, 789 F.2d at 1331; see also Terrell, 935 F.2d at 27 1017. Plaintiff has not made such a showing. Plaintiff’s arguments that he has limited 28 knowledge of the law and that this case will involve research and investigation are not based -2- 10cv702-WQH 1 on the complexity of the legal issues involved, but rather on the general difficulty of litigating 2 pro se. See Wilborn, 789 F.3d at 1331 (noting that, “If all that was required to establish 3 successfully the complexity of the relevant issues was a demonstration of the need for 4 development of further facts, practically all cases would involve complex legal issues.”). 5 Any pro se litigant “would be better served with the assistance of counsel.” Rand, 113 6 F.3d at 1525 (citing Wilborn, 789 F.2d at 1331). Nonetheless, so long as a pro se litigant, like 7 Plaintiff in this case, is able to “articulate his claims against the relative complexity of the 8 matter,” the “exceptional circumstances” which might require the appointment of counsel do 9 not exist. Id. (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court 10 denied appointment of counsel despite fact that pro se prisoner “may well have fared better- 11 particularly in the realms of discovery and the securing of expert testimony”); accord Palmer 12 v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Plaintiff has thus far been able to articulate his 13 claims against the relative complexity of the case, as the Court found that Plaintiff’s complaint 14 contained allegations sufficient to survive the sua sponte screening required by 28 U.S.C. 15 §§1915(e)(2) and 1915A(b) (see Doc. No. 7 at 4) and his claims against Defendant 16 LaMontagne survived a motion to dismiss and are proceeding through discovery (see Doc. No. 17 62). Further, Plaintiff’s assertions regarding presenting evidence and cross-examining 18 witnesses at trial does not present an exceptional circumstance warranting appointment of 19 counsel at this time, as this case is in the discovery phase and has not yet survived summary 20 judgment. Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiff’s third request 21 for appointment of counsel. 22 23 24 25 IT IS SO ORDERED. DATED: May 11, 2012 _________________________________ BERNARD G. SKOMAL United States Magistrate Judge 26 27 28 -3- 10cv702-WQH

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