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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 15-CV-176-GPC(WVG) GREGORY SMITH, Plaintiff, 12 13 v. 14 ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO APPOINT COUNSEL R. COBB et al., 15 Defendants. [Doc. No. 55] 16 Plaintiff Gregory Smith, proceeding pro se, brings this action under 42 U.S.C. 17 Section 1983 against officials of the California Department of Correction and 18 Rehabilitation (“CDCR”) alleging violations of his rights under the First and Eighth 19 Amendments. Plaintiff now moves for appointment of counsel, which the Court DENIES 20 without prejudice at this time. However, the Court may reconsider this ruling in the 21 future—either sua sponte or upon Plaintiff’s re-application—after a ruling on any 22 dispositive motions and it appears this case will proceed to trial. 23 I. BACKGROUND 24 Plaintiff, a prisoner at California’s Folsom prison, alleges that on September 29, 25 2010, he reported to officials that his cellmate was displaying “bizarre behavior.” This 26 included walking about the cell naked and talking about wanting to watch Plaintiff use the 27 toilet, sex with men, and rape. Officials informed Plaintiff that they would “take care of 28 the problem.” The following day Plaintiff was assaulted by his cellmate. He suffered 1 15-CV-176-GPC(WVG) 1 second degree burns on his right arm, neck and back, a broken left shoulder, left eye 2 damage, two stab wounds, and a fractured disc. Plaintiff was hospitalized for ten days at 3 U.C. San Diego Medical Center. He claims to suffer continuing mental and physical 4 trauma as a result of the assault. 5 In addition to the above alleged violation of his Eighth Amendment rights, Plaintiff 6 alleges that other defendants violated his First Amendment right to access to the courts by 7 frustrating his attempts to complete the prison’s grievance process. He filed suit on March 8 13, 2015. Since then, the Court denied a motion to dismiss and a summary judgment 9 motion filed by Defendants, and Plaintiff has filed a pending motion to strike Defendants’ 10 Answer. The Court also issued a scheduling order regulating discovery. 11 II. APPLICABLE LAW 12 “There is no constitutional right to appointed counsel in a § 1983 action.” Rand v. 13 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (partially overruled en banc on other 14 grounds). Thus, federal courts do not have the authority “to make coercive appointments 15 of counsel.” Mallard v. U.S. Dist. Ct., 490 U.S. 296, 310 (1989); see also United States v. 16 $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). 17 Districts courts do have discretion, however, pursuant to 28 U.S.C. section 18 1915(e)(1), to request that an attorney represent indigent civil litigants upon a showing of 19 exceptional circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 20 1103 (9th Cir. 2004). “A finding of the exceptional circumstances of the plaintiff seeking 21 assistance requires at least an evaluation of the likelihood of the plaintiff’s success on the 22 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the 23 complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. 24 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 25 1015, 1017 (9th Cir. 1991). 26 The Court agrees that any pro se litigant “would be better served with the assistance 27 of counsel.” Rand, 113 F.3d at 1525; citing Wilborn, 789 F.2d at 1331. However, so long 28 as a pro se litigant, like Plaintiff in this case, is able to “articulate his claims against the 2 15-CV-176-GPC(WVG) 1 relative complexity of the matter,” the exceptional circumstances which might require the 2 appointment of counsel do not exist. Rand, 113 F.3d at 1525 (finding no abuse of discretion 3 under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact 4 that pro se prisoner “may well have fared better-particularly in the realms of discovery and 5 the securing of expert testimony”). 6 III. DISCUSSION 7 Plaintiff contends he needs counsel appointed here because he is unable to afford 8 counsel, the issues in this case are complex, and he needs the assistance of expert witnesses. 9 The Court is not persuaded at this time. First, Plaintiff’s indigence is not a factor the Court 10 considers persuasive given that all or nearly all prisoners are indigent, and parties in civil 11 cases are not automatically entitled to appointed counsel despite their indigence. Second, 12 this case is not complex, as it does not present novel questions or theories of law, and this 13 area of law itself is not complex. The law in this areas is quite settled. Moreover, Plaintiff’s 14 factual allegations are also non-complex and are in line with similar claims routinely 15 litigated before this Court by pro se prisoners. Thus, Plaintiff will not need the assistance 16 of an attorney to research and argue some arcane or unclear legal theory at this time. 17 Finally, although Plaintiff generally states he lacks access to expert witnesses, he does not 18 identify what type of expert he needs or explain why such testimony is needed in this case. 19 Plaintiff’s request for appointment of counsel is DENIED without prejudice at this 20 time. However, given the potentially compelling nature of Plaintiff’s allegations, the Court 21 will reconsider appointment of counsel in the future if it appears this case will proceed to 22 trial. The Court will do so sua sponte or upon Plaintiff’s re-application for appointment of 23 counsel. 24 25 IT IS SO ORDERED. Dated: January 17, 2017 26 27 28 3 15-CV-176-GPC(WVG)

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