Brown v. Gore et al

Filing 83

ORDER Denying 67 Plaintiff's Motion to Appoint Counsel. Signed by Magistrate Judge Bernard G. Skomal on 6/25/2013. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT MARK BROWN, II ,
Inmate Booking No. 11181259,

CASE NO. 12-cv-1938-GPC(BGS)
ORDER DENYING
PLAINTIFF’S MOTION TO
APPOINT COUNSEL

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vs.

Plaintiff,

[Doc. No. 67]

WILLIAM D. GORE; FRANK C.
CLAMSER; DEPUTY #1; DEPUTY
VILLAREALL; DEPUTY #3 DEPUTY
WEBBER; DEPUTY #5,

Defendants.

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On March 16, 2012, Plaintiff Robert Mark Brown, II, a prisoner proceeding pro se and
In Forma Pauperis (“IFP”) in this civil rights action, filed a motion to appoint counsel. (Doc.
No. 67.)
Plaintiff requests appointment of counsel for the following reasons: (1) he is proceeding
IFP, and he cannot afford to retain legal representation; (2) he is confined in a state
correctional facility, thus, his ability to conduct discovery is limited; (3) the case is complex;
(4) the case involves conflicting witness testimony; and (5) he has attempted but failed to
retain legal representation. (Doc. No. 67.)
“There is no constitutional right to appointed counsel in a § 1983 action.” Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349,

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12cv1938-GPC

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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).

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District courts have discretion, however, pursuant to 28 U.S.C. Section 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 has thus far been able

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

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sufficient to survive the sua sponte screening required by 28 U.S.C. §§1915(e)(2) and

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1915A(b). (See Doc. No. 6 at 5.)

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In addition, the Court denied Plaintiff’s prior request for appoint of counsel on

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December 20, 2012. It does not appear that the legal issues involved have now became so

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complex that counsel is warranted at this stage of proceeding. See Wilborn v. Escalderon, 789

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F.3d 1328, 1331 (9th Cir. 1986) (noting that, “If all that was required to establish successfully

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

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

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IT IS SO ORDERED.
DATED: June 25, 2013

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Hon. Bernard G. Skomal
U.S. Magistrate Judge
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12cv1938-GPC