Smith v. Cobb et al

Filing 56

ORDER Denying Without Prejudice 55 Motion to Appoint Counsel. Signed by Magistrate Judge William V. Gallo on 1/17/17. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 15-CV-176-GPC(WVG)

GREGORY SMITH,
Plaintiff,

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v.

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ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION
TO APPOINT COUNSEL

R. COBB et al.,

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Defendants.

[Doc. No. 55]

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Plaintiff Gregory Smith, proceeding pro se, brings this action under 42 U.S.C.

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Section 1983 against officials of the California Department of Correction and

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Rehabilitation (“CDCR”) alleging violations of his rights under the First and Eighth

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Amendments. Plaintiff now moves for appointment of counsel, which the Court DENIES

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without prejudice at this time. However, the Court may reconsider this ruling in the

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future—either sua sponte or upon Plaintiff’s re-application—after a ruling on any

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dispositive motions and it appears this case will proceed to trial.

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I.

BACKGROUND

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Plaintiff, a prisoner at California’s Folsom prison, alleges that on September 29,

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2010, he reported to officials that his cellmate was displaying “bizarre behavior.” This

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included walking about the cell naked and talking about wanting to watch Plaintiff use the

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toilet, sex with men, and rape. Officials informed Plaintiff that they would “take care of

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the problem.” The following day Plaintiff was assaulted by his cellmate. He suffered
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second degree burns on his right arm, neck and back, a broken left shoulder, left eye

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damage, two stab wounds, and a fractured disc. Plaintiff was hospitalized for ten days at

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U.C. San Diego Medical Center. He claims to suffer continuing mental and physical

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trauma as a result of the assault.

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In addition to the above alleged violation of his Eighth Amendment rights, Plaintiff

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alleges that other defendants violated his First Amendment right to access to the courts by

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frustrating his attempts to complete the prison’s grievance process. He filed suit on March

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13, 2015. Since then, the Court denied a motion to dismiss and a summary judgment

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motion filed by Defendants, and Plaintiff has filed a pending motion to strike Defendants’

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Answer. The Court also issued a scheduling order regulating discovery.

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II.

APPLICABLE LAW

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“There is no constitutional right to appointed counsel in a § 1983 action.” Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (partially overruled en banc on other

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grounds). Thus, federal courts do not have the authority “to make coercive appointments

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of counsel.” Mallard v. U.S. Dist. Ct., 490 U.S. 296, 310 (1989); see also United States v.

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

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Districts courts do have discretion, however, pursuant to 28 U.S.C. section

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1915(e)(1), to request that an attorney represent indigent civil litigants upon a showing of

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exceptional circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101,

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1103 (9th Cir. 2004). “A finding of the exceptional circumstances of the plaintiff seeking

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assistance requires at least an evaluation of the likelihood of the plaintiff’s success on the

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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

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1015, 1017 (9th Cir. 1991).

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The Court agrees that any pro se litigant “would be better served with the assistance

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of counsel.” Rand, 113 F.3d at 1525; citing Wilborn, 789 F.2d at 1331. However, so long

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as a pro se litigant, like Plaintiff in this case, is able to “articulate his claims against the
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relative complexity of the matter,” the exceptional circumstances which might require the

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appointment of counsel do not exist. Rand, 113 F.3d at 1525 (finding no abuse of discretion

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under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact

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that pro se prisoner “may well have fared better-particularly in the realms of discovery and

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the securing of expert testimony”).

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III.

DISCUSSION

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Plaintiff contends he needs counsel appointed here because he is unable to afford

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counsel, the issues in this case are complex, and he needs the assistance of expert witnesses.

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The Court is not persuaded at this time. First, Plaintiff’s indigence is not a factor the Court

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considers persuasive given that all or nearly all prisoners are indigent, and parties in civil

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cases are not automatically entitled to appointed counsel despite their indigence. Second,

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this case is not complex, as it does not present novel questions or theories of law, and this

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area of law itself is not complex. The law in this areas is quite settled. Moreover, Plaintiff’s

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factual allegations are also non-complex and are in line with similar claims routinely

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litigated before this Court by pro se prisoners. Thus, Plaintiff will not need the assistance

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of an attorney to research and argue some arcane or unclear legal theory at this time.

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Finally, although Plaintiff generally states he lacks access to expert witnesses, he does not

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identify what type of expert he needs or explain why such testimony is needed in this case.

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Plaintiff’s request for appointment of counsel is DENIED without prejudice at this

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time. However, given the potentially compelling nature of Plaintiff’s allegations, the Court

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will reconsider appointment of counsel in the future if it appears this case will proceed to

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trial. The Court will do so sua sponte or upon Plaintiff’s re-application for appointment of

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counsel.

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IT IS SO ORDERED.
Dated: January 17, 2017

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