Eusse, Jr. v. Vitela et al

Filing 53

ORDER Denying 52 Motion to Appoint Counsel without Prejudice. Signed by Magistrate Judge Nita L. Stormes on 7/16/2015. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No.: 3:13-cv-00916-BEN-NLS

James Eusse, Jr.,
v.

ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL

Marco Vitela, et al.,
Defendants.

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(Dkt. No. 52)

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Plaintiff James Eusse, Jr., a California prisoner proceeding pro se and in forma

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pauperis, commenced this civil rights action pursuant to 18 U.S.C. § 1983 on April 16,

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2013. (Dkt. No. 1). Presently pending before the Court is Plaintiff’s Motion for

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Appointment of Counsel. (Dkt. No. 52).

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Plaintiff asserts he is entitled to appointment of counsel on the grounds that: (1) he

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is “unable to afford counsel;” (2) “the issues involved in this case are complex;” (3) his

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family has contacted eight attorneys, but they all declined to represent him; (4) he “has a

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limited knowledge of the law;” (5) “Defendants have objected to providing key evidence

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to [his] case;” and (6) Defendants are withholding “key evidence” as confidential and

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undiscoverable. (Dkt. No. 52 at 1−2). For the reasons set forth below, the Court

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DENIES WITHOUT PREJUDICE Plaintiff’s motion for appointment of counsel.
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I.

LEGAL STANDARD
There is no constitutional right to be represented by counsel in a civil action.

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Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). The court may,

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however, request an attorney to represent an indigent civil litigant upon a showing of

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“exceptional circumstances.” 28 U.S.C. § 1915(e)(1); Agyeman v. Corrs. Corp. of Am.,

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390 F.3d 1101, 1103 (9th Cir. 2004). “A finding of exceptional circumstances requires

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an evaluation of both ‘the likelihood of success on the merits [and] the ability of the

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petitioner to articulate his claims pro se in light of the complexity of the legal issues

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involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting

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Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Neither of these factors are

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dispositive, and they must be considered together when determining whether to appoint

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counsel. Wilborn, 789 F.2d at 1331.

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II.

DISCUSSION

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A. Plaintiff’s Indigence And Efforts To Obtain Counsel

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The Ninth Circuit requires indigent plaintiffs to make a reasonably diligent effort

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to secure counsel on their own before obtaining court-appointed counsel in the

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employment discrimination context. Bradshaw v. Zoological Soc’y of San Diego, 662

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F.2d 1301, 1319 (9th Cir. 1981). A number of district courts have extended this

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requirement to requests for appointment of counsel pursuant to § 1915(d), such that

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plaintiffs must show: (1) they are indigent; and (2) they made a “reasonably diligent

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effort” to obtain counsel before the court will appoint counsel on their behalf. See, e.g.,

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Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993). A plaintiff satisfies the

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“reasonably diligent effort” requirement by doing “all that may reasonably be expected of

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him[,]” but he need not “exhaust the legal directory.” Id.

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This Court acknowledged Plaintiff’s indigence when it granted Plaintiff’s motion

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for leave to proceed in forma pauperis. (Dkt. No. 6). Additionally, Plaintiff and his

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family have contacted eight attorneys, all of whom declined to represent Plaintiff in this
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matter. (Dkt. No. 52 at 1). Thus, Plaintiff is indigent and has made a “reasonably

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diligent effort” to secure counsel for himself. The Court next turns to whether Plaintiff

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has made a showing of exceptional circumstances to warrant appointment of counsel.

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B. Exceptional Circumstances

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The Court may appoint counsel to represent an indigent litigant upon a showing of

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“exceptional circumstances,” considering both the litigant’s likelihood of success on the

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merits, as well as his ability to articulate his claims pro se. Wilborn, 789 F.2d at 1331.

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However, Plaintiff has not made such a showing, and the Court declines to appoint

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counsel at this time.

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1. Likelihood of Success on the Merits
If a plaintiff does not provide evidence of his likelihood of success at trial, he fails

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the first factor of the Wilborn test. Bailey, 835 F. Supp. at 552. Here, Plaintiff has

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clearly articulated his claims, but he has not provided any evidence aside from his own

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assertions regarding the likelihood of success on the merits. Thus, the Court cannot

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determine the likelihood that Plaintiff will succeed at trial, and Plaintiff fails to satisfy the

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first Wilborn factor. However, neither of the Wilborn factors are dispositive, so the Court

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must also consider Plaintiff’s ability to articulate his claims pro se in light of the

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complexity of his case. See Wilborn, 789 F.2d at 1331.

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2. Ability to Articulate Claims Pro Se

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Although any pro se litigant “would be better served with the assistance of

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counsel,” so long as the litigant is able to articulate his claims with sufficient clarity, the

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“exceptional circumstances” that require appointment of counsel do not exist. Id. Thus,

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where a pro se civil litigant shows he has a good grasp of basic court procedure and sets

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forth the factual and legal basis for his claims in a straightforward manner, he is not

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entitled to court-appointed counsel. See Dunsmore v. Paramo, No. 13-cv-1193, 2013

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WL 5738774, at *2 (S.D. Cal. Oct. 22, 2013) (citing Terrell v. Brewer, 935 F.2d 1015,

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1017 (9th Cir. 1991); see also, Munguia v. Frias, No. 07CV1016, 2008 WL 80993, at *1
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(S.D. Cal. Jan. 8, 2008).
Here, neither the complexity of Plaintiff’s case nor his limited knowledge of the

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law have prevented him from clearly articulating his claims. Plaintiff asserts that his case

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is too complex for him to handle pro se. (Dkt. No. 52 at 3). But, the Court understands

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Plaintiff’s articulation of his claims, as well as the relief he seeks. Moreover, Plaintiff

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has shown a basic understanding of court procedure, evidenced by the several motions

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and documents he has successfully filed with this Court. (See e.g. Dkt. No. 5, 7, 8, 19,

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21, 28, 31, 33, 35). Thus, Plaintiff is able to articulate his claims pro se and does not

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require court-appointed counsel.

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Nor do Plaintiff’s difficulties investigating his case entitle him to appointment of

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counsel. Plaintiff asks the Court to appoint counsel because his case requires discovery,

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he is currently incarcerated and is unable to investigate the facts, and he has limited

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access to the library. (Dkt. No. 52 at 5−6). However, the need for discovery or

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difficulties developing the factual record do not constitute the type of “exceptional

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circumstances” required for appointment of counsel. Wilborn, 789 F.2d at 1331. Indeed,

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if “all that was required to establish successfully the complexity of the relevant issues

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was a demonstration of the need for the development of further facts, practically all cases

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would involve complex legal issues” warranting appointment of counsel. Id.

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Additionally, Plaintiff contends appointment of counsel is warranted because Defendants

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objected to some of his requests for production. (Dkt. No. 52 at 1−2). In fact, Plaintiff

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filed a presently pending Motion to Compel Discovery to contest Defendant’s objection.

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(See Dkt. No. 46). However, these discovery concerns, as well as Plaintiff’s limited

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access to the prison library, do not present “exceptional circumstances,” but rather

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illustrate the difficulties any prisoner would have litigating pro se. Miller v.

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LaMontagne, No. 10-CV-702, 2012 WL 1666735, at 1 (S.D. Cal. May 11, 2012);

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Mayweathers v. Hickman, No. 05CV713, 2008 WL 4192684, at *1 (S.D. Cal. Sept. 10,

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2008). Thus, they do not justify the appointment of counsel.
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Finally, Plaintiff contends he should be appointed counsel because he has

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demanded a jury trial and he is ill-suited to present his case or handle issues of conflicting

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testimony and credibility on his own. (Dkt. No. 52 at 6−7). However, these concerns do

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not present an exceptional circumstance warranting appointment of counsel at this time,

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as this case is still in the discovery phase. See Miller, 2012 WL 1666735, at *2.

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Therefore, Plaintiff has not shown that he is incapable of articulating his claims pro se.

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As a result, he has not satisfied the second Wilborn factor to warrant appointment of

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counsel.

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III.

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CONCLUSION
Plaintiff has not satisfied either of the Wilborn factors because he has not shown

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that he is likely to succeed on the merits or that he is incapable of articulating his claims

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pro se. Accordingly, Plaintiff has not established the exceptional circumstances required

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for appointment of counsel. Thus, the Court DENIES WITHOUT PREJUDICE

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Plaintiff’s Motion for Appointment of Counsel.

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IT IS SO ORDERED.

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Dated: July 16, 2015

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