Douglas v. Smelosky et al

Filing 31

ORDER Denying 27 Motion to Appoint Counsel. Plaintiff's present motion does not change this analysis. Accordingly, the Court must once again Deny Without Prejudice Plaintiff's motion for appointment of counsel. Signed by Magistrate Judge Bernard G. Skomal on 4/2/2012. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT DOUGLAS,

Civil No.

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10-CV-1464-MMA (BGS)

Plaintiff,

ORDER DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL

v.

MICHAEL SMELOSKY, Warden; et al.,
Defendant.
On November 18, 2011, Plaintiff Robert Douglas, a prisoner proceeding pro se in this civil rights
action filed pursuant to 42 U.S.C. §1983, filed a motion to appoint counsel to assist in the preparation and
prosecution of the case. (Doc. No. 27.) This is Plaintiff’s third request to appoint counsel. (See Doc. No.
3; Doc. No. 13.) On August 27, 2010, the Court denied Plaintiff’s first request. (Doc. No. 4.) On June 22,
2011, the Court denied Plaintiff’s second request. (Doc. No. 15.) For the reasons set forth below, the Court
DENIES WITHOUT PREJUDICE Plaintiff’s current motion for appointment of counsel.
In Plaintiff’s current motion to appoint counsel, he makes the identical arguments as to why the
Court should appoint him counsel as he did in his previous motion to appoint counsel. (Doc. No. 13.)
Again, Plaintiff argues the Court should appoint him counsel because he is indigent and unable to afford
to retain the services of private counsel, the complaint involves allegations of deliberate indifference and
violations of Plaintiff’s constitutional rights, the complexities of the issues raise the possibility that expert
witnesses may have to be called and extensive discovery conducted, Plaintiff is ill-equipped to match
seasoned litigators if this case goes to trial, an appointed counsel would better protect Plaintiff’s interests
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in any cross-examination and presentation of law, he is a prisoner suing prison officials and will be stymied

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in any effort to interview defense witnesses or obtain discovery from the prison, and he will be playing on

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an uneven playing field without counsel. (Doc. No. 27.)

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As established in this Court’s previous Order Denying Motion for Appointment of Counsel (Doc.

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No. 15), “[t]here is no constitutional right to appointed counsel in a §1983 action.” Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); see also

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Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994). However, district

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courts have discretion, pursuant to 28 U.S.C. §1915(e)(1), to “request” that an attorney represent indigent

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civil litigants upon a showing of “exceptional circumstances.” See Agyeman v. Corrections Corp. of

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America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525. “A finding of the exceptional

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circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood of the

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

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of the 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, 1017 (9th Cir.

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1991).

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The Court denies Plaintiff’s request without prejudice, as neither the interests of justice nor

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exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626

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(9th Cir. 1987); Terrell, 935 F.2d at 1017. The Court previously denied Plaintiff’s request and nothing has

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substantially changed in this case since that time to change the Court’s analysis. Plaintiff has thus far been

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able to articulate his claims, as the Court found that Plaintiff’s complaint contains allegations sufficient to

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survive the sua sponte screening required by 28 U.S.C. §§1915(e)(2) and 1915A(b). (See Doc. No. 4 at 4.)

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Furthermore, although Defendant’s motion to dismiss was granted in part, Plaintiff’s complaint against

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Defendant Valenzuela in his individual capacity survived Defendant’s Motion to Dismiss and will be going

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forward.1 (See Doc. No. 18 at 2-3.)

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As this Court previously noted in its Order Denying Motion for Appointment of Counsel, any pro

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se litigant “would be better served with the assistance of counsel.” Rand, 113 F.3d at 1525 (citing Wilborn,

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Plaintiff’s other claim against Defendant Smelosky in his individual capacity was dismissed with leave to
amend and Plaintiff chose not to amend. (See Doc. No. 18 at n.1)

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789 F.2d at 1331). Nonetheless, so long as a pro se litigant, like Plaintiff in this case, is able to “articulate

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his claims against the relative complexity of the matter,” the “exceptional circumstances” which might

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require the appointment of counsel do not exist. Id. (finding no abuse of discretion under 28 U.S.C. §

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1915(e) when district court denied appointment of counsel despite fact that pro se prisoner “may well have

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fared better-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).

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This court previously found that Plaintiff's arguments regarding his ability to obtain discovery, the

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potential need for experts, and his comparative ability to cross-examine witnesses are not exceptional

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circumstances warranting the appointment of counsel at this time. (Doc. No. 15 at 3.) Furthermore, most

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of Plaintiff's arguments are not based on the complexity of the legal issues involved but rather on the general

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difficulty of litigating pro se. Id.; see Wilborn v. Escalderon, 789 F.3d 1328, 1331 (9th Cir. 1986) (noting

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that, “If all that was required to establish successfully the complexity of the relevant issues was a

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demonstration of the need for development of further facts, practically all cases would involve complex

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legal issues.”). For those reasons, the Court found that exceptional circumstances which might require the

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appointment of counsel did not exist. (Doc. No. 15 at 3.)

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Plaintiff’s present motion does not change this analysis. Accordingly, the Court must once again
DENY WITHOUT PREJUDICE Plaintiff’s motion for appointment of counsel.
IT IS SO ORDERED.
DATED: April 2, 2012
BERNARD G. SKOMAL
United States Magistrate Judge

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