Torbert v. Gore et al

Filing 28

ORDER Denying 27 Motion to Appoint Counsel without Prejudice. Signed by Magistrate Judge Nita L. Stormes on 9/17/2015. (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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JAVON LAMAR TORBERT,

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v.

Plaintiff,

WILLIAM D. GORE; DEPUTY
DAILL; DEPUTY McMAHON;
14 DEPUTY Y.G. GEBREBIORGIS;
SERGEANT ESTRADA; COUNTY
15 OF SAN DIEGO; and DOES 1-50,
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Civil No.14cv2911 BEN (NLS)
ORDER DENYING MOTION TO
APPOINT COUNSEL
[Dkt. No. 27]

Defendants.

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Plaintiff Javon Lamar Tobert (“Plaintiff”), a prisoner proceeding pro se and in

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forma pauperis, filed this civil rights on December 9, 2014. He alleges excessive force,

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cruel and unusual punishment and deliberate indifference claims arising from an alleged

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incident where one of the defendants slammed a metal door on Plaintiff’s left arm. The

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discovery deadline is October 23, 2015. Now, Plaintiff asks this court to appoint him

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counsel. He argues that appointment of counsel is appropriate here because Plaintiff (1)

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is mentally and physically impaired, as he is partially blind, has chronic asthma and

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epileptic seizures, and suffers from several mental disorders for which he takes

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psychotropic medications; (2) is not educated in the law; (3) will require the help of

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experts to prove his claims; and (4) is indigent and does not have the resources to

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investigate crucial facts.
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I.

LEGAL STANDARD
The Constitution provides no absolute right to the appointment of counsel in any

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civil proceeding. Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994).

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In pro se and in forma pauperis proceedings, district courts do not have the authority “to

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make coercive appointments of counsel.” Mallard v. United States District Court, 490

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U.S. 296, 310 (1989). But they do have the discretion to request that an attorney

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represent an indigent civil litigant upon a showing of “exceptional circumstances.”

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28 U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. Of America, 390 F.3d 1101, 1103

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(9th Cir. 2004).
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 [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986), quoting Weygandt v. Look, 718 F.2d 952, 954 (9th

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Cir. 1983). Neither of the Wilborn factors are dispositive, and they must be viewed

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together before the district court reaches its decision. Id.

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II.

ANALYSIS

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A.

Likelihood of Success on the Merits

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A plaintiff that provides no evidence of his likelihood of success at trial fails to

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satisfy the first factor of the Wilborn test. Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D.

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Cal. 1993). Here, there is very little before the court regarding the merits of Plaintiff’s

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case, other than the assertions in the complaint. As a result, it is difficult at this time to

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determine the likelihood that Plaintiff will succeed on the merits. Therefore, Plaintiff

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fails to satisfy the first Wilborn factor.

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B.

Plaintiff’s Ability to Articulate His Claims

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Where a pro se civil rights plaintiff shows he has a good grasp of basic litigation

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procedure and has been able to articulate his claims adequately, he does not demonstrate

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the exceptional circumstances required for the appointment of counsel. See Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009). As another court in this district noted, there is
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“no doubt [that] most pro se litigants find it difficult to articulate their claims and would

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be better served with the assistance of counsel.” Garcia v. Cal. Dep’t of Corrections &

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Rehab., 2013 WL 485756, at *1 (S.D. Cal. Feb. 6, 2013). But it is for this reason that

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federal courts employ procedures that protect a pro se litigant’s rights. See Haines v.

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Kerner, 404 U.S. 519, 520 (1972). In pro se civil rights cases, a court must construe the

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pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los

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Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). Thus, where a pro se plaintiff

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can articulate his claims in light of their relative complexity, there are no exceptional

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circumstances to justify appointment of counsel. Garcia, 2013 WL 485756, at *1, citing

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Wilborn, 789 F.2d at 1331.
The purported complexity of this case and Plaintiff’s limited knowledge of the law

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have not prevented him from articulating his claims. This court has reviewed Plaintiff’s

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complaint and finds that the issues he raises are not particularly complex. The court

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understands Plaintiff’s claims and the relief sought. Plaintiff has also demonstrated that

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he has a good grasp on basic litigation procedure, as evidenced by the pleadings and

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submissions he has filed with this court. See, e.g. Dkt. Nos. 1, 18, and 27.

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While Plaintiff argues that he has been on psychiatric medications since 1995, and

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attached exhibits confirming his diagnoses and his prescribed psychiatric medications, he

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makes no allegations regarding the impact of his mental illnesses on his ability to present

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his case. As for his other argument that he lacks funds and needs counsel to work with

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experts to help frame his claims, such an issue is common to most prisoners, and does not

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amount to exceptional circumstances. See, e.g., Wood v. Housewright, 900 F.2d 1332,

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1335-36 (9th Cir. 1990) (denying appointment of counsel where plaintiff complained that

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he had limited access to law library and lacked a legal education).
The court finds that Plaintiff has sufficiently put on his case thus far in light of the

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complexity of the legal issues involved.

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III. CONCLUSION AND ORDER
Viewing the Wilborn factors together, Plaintiff has not shown a likelihood of

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success on the merits of his case or that he cannot articulate his claims and litigate this

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action pro se. Therefore, Plaintiff has not established the exceptional circumstances

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required for the appointment of counsel pursuant to 28 U.S.C. Section 1915(e)(1).

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The court, therefore, DENIES without prejudice Plaintiff’s motion for
appointment of counsel.
IT IS SO ORDERED.
DATED: September 17, 2015

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Hon. Nita L. Stormes
U.S. Magistrate Judge
United States District Court

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