Israel v. Nuno et al

Filing 46

ORDER denying without prejudice Plaintiff's 45 Ex Parte Motion for Appointment of Counsel. Signed by Magistrate Judge Bernard G. Skomal on 7/8/2016. (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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Israel Garcia,

Case No.: 14cv00243-BAS-BGS
Plaintiff,

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ORDER DENYING PLAINTIFF’S EX
PARTE MOTION FOR
APPOINTMENT OF COUNSEL

v.
Antonio Nuno, et al,
Defendant.

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I.

BACKGROUND
On July 5, 2016, Plaintiff Israel Garcia, a prisoner proceeding pro se and In Forma

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Pauperis (“IFP”) in this civil rights action, filed a motion to appoint counsel, his second

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such request. (ECF No. 45.) In his Amended Complaint, Plaintiff claims several

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correctional and medical officials at Calipatria State Prison violated his Eighth

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Amendment and Fourteenth Amendment rights in February 2013, by failing to ensure his

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safety, using excessive force against him, denying him adequate medical treatment, and

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refusing to permit him to present evidence at a disciplinary proceeding which resulted in

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a year of administrative segregation. (See ECF No. 16 at 5-17.) On July 18, 2014,

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Plaintiff filed an ex parte motion to appoint counsel because he is indigent, incarcerated,

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has limited access to the law library, has made “repeated efforts to obtain a lawyer,”

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believes his case will “likely involve conflicting testimony,” and that counsel would
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“better enable [him] to present evidence and cross examine witnesses.” (See ECF No. 12

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at ¶¶ 1-4.) On October 31, 2014, the Court issued an order denying Plaintiff’s motion to

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appoint counsel without prejudice for failure to demonstrate the exceptional

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circumstances required for appointment of counsel in a civil action. (See ECF No. 18 at

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3.)
Presently before the Court is Plaintiff’s second ex parte motion for appointment of

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counsel filed on July 5, 2016 nunc pro tunc to June 30, 2016. (ECF No. 45.) Plaintiff’s

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present motion requests appointment of counsel because of his “recent diagnosis” and

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because his “resources [in jail] are very limited.” (Id. at 1.)

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II.

STANDARD OF REVIEW
As explained in the Court’s prior order, “there is no absolute right to counsel in

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civil proceedings.” Hedges v. Resolution Trust Corp. (In Re Hedges), 32 F.3d 1360,

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1363 (9th Cir. 1994). Consequently, federal courts do not have the authority “to make

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coercive appointments of counsel” as Plaintiff has asked this Court to do in his recent

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motion. Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see also

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United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).

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The Court also explained in its October 31, 2014 Order that while district courts do have

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

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civil litigants, such a request is only made upon an evaluation of the likelihood of the

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plaintiff’s success on the merits and a showing of “exceptional circumstances.” See

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Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004).

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A finding of the exceptional circumstances “requires at least an evaluation of the

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Plaintiff’s ability to articulate his claims ‘in light of the complexity of the legal issues

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involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.25 1328,

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1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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DISCUSSION

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Plaintiff has twice now requested appointment of counsel in this case based, in

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part, on his assertion that he is uneducated in the law and lacks the resources to properly
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litigate his case. However, one’s lack of education and resources, without more, does not

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qualify as an exceptional circumstance warranting appointed counsel in a civil action.

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The courts are aware, as Plaintiff wrote in his ex parte motion, that most pro se litigants

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“find it difficult to articulate [their] claims,” and would be better served with the

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assistance of counsel. Wilborn, 789 F.2d at 1331; Rand v. Rowland, 113 F.3d 1520, 1525

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(9th Cir. 1997). To address this issue, federal courts employ procedures which are

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protective of a pro se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 (holding

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pro se complaint to less stringent standard) (per curiam). For example, where a plaintiff

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appears pro se in a civil rights case, the court must construe the pleadings liberally and

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afford the plaintiff any benefit of the doubt. Karim–Panahi v. Los Angeles Police Dep’t,

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839 F.2d 621, 623 (9th Cir. 1988).

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The Court has once again reviewed the complaint in this action and finds Plaintiff

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has been able to clearly articulate his claims that his Eighth and Fourteenth Amendment

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rights were violated. Nothing has substantially changed in this case since the Court’s last

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order that would change the Court’s analysis of the exceptional circumstance

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requirement. Although Plaintiff argues that his case is “complex,” the Court does not

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agree that the issues are so complex as to warrant appointment of counsel at this time. As

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the Ninth Circuit explained in Wilborn, difficulty alone is not sufficient to meet the

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exceptional circumstances requirement. Wilborn, 789 F.2d at 1331.

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To establish exceptional circumstances, Plaintiff must demonstrate that because of

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the complexity of his legal claims he is unable to articulate his positions. Rand, 113 F.3d

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at 1525. The court in Rand held exceptional circumstances did not exist where, even

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though the motions that were filed with the court “did not achieve the quality of papers

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that might have been prepared by a lawyer,” the papers were “generally articulate and

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organized.” Id. Here, like the litigant in Rand, Plaintiff has been able to put forward his

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claims in a generally articulate and organized manner against the relative complexity of a

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§1983 case and therefore this action does not warrant the assistance of counsel at this

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time.1 Accordingly, Plaintiff’s motion is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated: July 8, 2016

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Plaintiff also states that he needs the assistance of counsel because of his “recent diagnosis.” (ECF No.
45 at 1.) He further states that he has not enclosed his mental diagnosis “do (sic) to no copys (sic).” (Id.
at 2.) Not only has Plaintiff failed to provide corroboration of his mental diagnosis, the Court finds that
whatever the diagnosis is, Plaintiff is nevertheless able to sufficiently articulate his position with respect
to his factual and legal arguments. This likewise fails to meet the standard of exceptional circumstances
required to obtain counsel. Agyeman, 390 F.3d at 1103
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