Brown v. Gore et al

Filing 38

ORDER denying without prejudice Plaintiff's 37 Motion to Appoint Counsel. Court requests that counsel for the County contact the Prison Litigation Coordinator at pla's facility to determine what can be done to ensure he has access to appropriate legal resources. Signed by Magistrate Judge Karen S. Crawford on 1/28/2015. (All non-registered users served via U.S. Mail Service) (jah)

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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 Number 11181259,

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vs.

Plaintiff,

WILLIAM GORE, Sheriff of San
Diego County, et aI.,

CASE NO. 14cv 102-BAS (KSC)
ORDER DENYING PLAINTIFF'S
MOTION FOR APPOINTMENT OF
COUNSEL
[Doc. 37]

Defendants.

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Plaintiff Robert Mark Brown II, a state prisoner proceeding pro se, filed this

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action pursuant to Title 42, United States Code. Section 1983. Before the Court is the

19 plaintiff's Motion for the Appointment of Counsel. [Doc. 37] In his Motion, the
20 plaintiff requests that the Court appoint counsel in his case because: (1) the plaintiff
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is unable to afford counsel; (2) the issues involved in the case are complex; (3) the

22 plaintiff, as a segregation inmate, has no access to a law library or legal assistance; (4)
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the plaintiff has written letters to lawyers to request their assistance with his case, but

24 has not received a response; (5) the plaintiffhas limited knowledge ofthe law; and (6)
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the plaintiffhas vision problems following a surgery to repair a fracture caused by the

26 inmate assault that is at issue in his claims. Id. at 1-2. For the reasons outlined below,
27 this Court finds that plaintiff's Motion must be DENIED.
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14cvl02-BAS (KSC)

DISCUSSION

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An indigent's right to appointed counsel has been recognized to exist "only

3 where the litigant may lose his physical liberty ifhe loses the litigation." Lassiter v.
4 Department of Social Services of Durham County, N.

c.,

452 U.S. 18, 25 (1981).

5 District Courts generally lack authority to require counsel to represent indigent
6 prisoners in Section 1983 cases. Mallard v.

us.

Dist. Court, 490 U.S. 296, 298

7 (1989). However, in certain "exceptional circumstances," the Court may request the
8 voluntary assistance of counsel. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
9 1991).
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"A finding of exceptional circumstances requires an evaluation of both the

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likelihood of success on the merits and the ability of the petitioner to articulate his

12 claims pro se in light ofthe complexity ofthe legal issues involved." Terrell, 935 F.2d
13 at 1017 (internal citations omitted). "Neither of these factors is dispositive and both
14 must be viewed together before reaching a decision." Id. (internal citation omitted).
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The Court agrees that like any pro se litigant, the plaintiff "would be better

16 served with the assistance ofcounsel." Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.
17 1997) (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). However,
18 so long as a pro se litigant is able to "articulate his claims against the relative
19 complexity of the matter," the "exceptional circumstances" which might require the
20 appointment ofcounsel do not exist. Id. As currently pleaded, the plaintiffs Second
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Amended Complaint demonstrates his ability to articulate essential facts in support of

22 his claims. See [Doc. 26] Thus, the Court finds that at this stage of the litigation, the
23 plaintiff does appear to have an adequate grasp of his case as well as the legal issues
24 involved. See Terrell, 935 F.2d at 1017.
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Here, the Court finds that the plaintiffhas not established either a likelihood of

26 success on the merits or an inability to articulate his claims. First, the plaintiffs
27 Second Amended Complaint alleges that the defendants violated his First Amendment
28 rights through their "post card policy." [Doc. 26, p. 3] He further claims that the
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14cv102-BAS (KSC)

1 defendants violated his Eighth Amendment rights through their failure to protect him
2 from an assault by another inmate. Id. at 4. In his Motion, the plaintiff does not
3 address the likelihood ofsuccess on the merits except to conclude that "[t]he plaintiff s
4 allegations, if proved, clearly would establish constitutional violations." [Doc. 37, p.
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Second, there is nothing from which this Court could conclude that the plaintiff

7 lacks the ability to articulate and prosecute his claims pro se. He has filed an original
8 Complaint and two amended Complaints, as well as several motions. [Docs. 1,2,6, 14,
9 16, 18, 20, 24, 26] His filings are fairly well organized and present the issues with
10 adequate clarity and efficiency.
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Third, plaintiffclaims that "[t]he sheer number ofclaims ... makes this a factually

12 complex case." [Doc. 37, p. 11] However, the facts in the Complaint are not complex.
13 The Second Amended Complaint ("SAC") contains several factual allegations
14 regarding the plaintiffs right to receive mail and an assault by another inmate. [Doc.
15 26] These are neither novel nor particularly complicated allegations.
Fourth, any hardships imposed by plaintiffs incarceration and medical

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17 circumstances, such as limited access to legal materials, are not enough to establish
18 exceptional circumstances. As expressed in plaintiff s moving papers, these hardships
19 are similar to those encountered by all incarcerated civil litigants.
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Finally, pro se litigants are afforded some leniency to compensate for their lack

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of legal training. "In civil rights cases where the plaintiff appears pro se, the court

22 must construe the pleadings liberally and must afford plaintiff the benefit of any
23 doubt." Jackson v. Carey, 353 F3d 750, 757 (9th Cir. 2003) (internal citation omitted).
24 This also applies to motions. Bernhardt v. Los Angeles County, 339 F 3d 920, 925
25 (9th Cir. 2003). Accordingly, plaintiffs pro se status will be taken into consideration
26 by the Court when his filings are reviewed.
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14cvI02-BAS (KSC)

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED THAT plaintiff's Motion

3 for Appointment of Counsel [Doc. 37] is DENIED without prejudice.
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To the extent that the plaintiff has alleged that he has been denied all access to

5 the prison law library [Doc. 37, p. 1], the Court requests that counsel for the County
6 contact the Prison Litigation Coordinator or other appropriate official at the plaintiff's
7 facility to determine what can be done to ensure that he has access to appropriate legal
8 resources throughout the pendency of his case.
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IT IS SO ORDERED.

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12 Date: January

Z. S-

,2015

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States Magistrate Judge

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14cv I02-BAS (KSC)