Larson v. Paramo et al

Filing 44

ORDER Denying Plaintiff's 42 Motion to Appoint Counsel without prejudice. Signed by Magistrate Judge Bernard G. Skomal on 10/20/2015. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JON WARREN LARSON, CDCR
#AD-2009

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vs.

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15-CV-308 BTM (BGS)
ORDER DENYING
PLAINTIFF’S MOTION TO
APPOINT COUNSEL
WITHOUT PREJUDICE

Plaintiff,

WARDEN D. PARAMO; CMO
WALKER; DR. J. CHAU; DR.
NEWTON; DR. S. ROBERTS; R.N.
GIL; R.N. T. PAULE; R.N. WINZEL;
DR. KRISTEN DEAN,

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[ECF No. 42. ]

Defendants.

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On October 14, 2015, Plaintiff Jon Warren Larson, a prisoner proceeding pro

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se and In Forma Pauperis (“IFP”) in this civil rights action, filed his third motion to

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appoint counsel. [See ECF Nos. 42, 36 and 22.] He requests appointment of

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counsel on the following grounds: (1) the complexity of the case based on its

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underlying medical subject matter; (2) Plaintiff’s inability to investigate due to his

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incarceration in punitive segregation; (3) the likelihood of conflicting testimony

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between witnesses; (4) his indigence and lack of legal training; (5) the “legal

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complexity” of the case owing to the number of defendants named in the First

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Amended Complaint; and (6) the underlying merits of the case. [ECF No. 42 at 7:1 -

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9:12.]

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15cv308 BTM (BGS)

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As the Court has advised Plaintiff on two prior occasions, “[t]here is no

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constitutional right to appointed counsel in a § 1983 action.” Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353

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(9th Cir. 1981)); see also Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d

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1360, 1363 (9th Cir. 1994) (“[T]here is no absolute right to counsel in civil

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proceedings.”) (citation omitted). Federal courts do not have the authority “to make

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

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U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54

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F.3d 564, 569 (9th Cir. 1995).

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

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

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showing of “exceptional circumstances.” See Agyeman v. Corrections Corp. of

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America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525. “A finding

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of the exceptional circumstances of the plaintiff seeking assistance requires at least

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an evaluation of the likelihood of the plaintiff’s success on the merits and an

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evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity

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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

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F.2d 1015, 1017 (9th Cir. 1991).

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Recently, on September 30, 2015, the Honorable Barry T. Moskowitz denied

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Plaintiff’s second request for appointment of counsel. [ECF No. 36.] The Court has

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carefully reviewed Plaintiff’s most recent motion for appointment of counsel and

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determined that the circumstances of this case have not changed in the brief amount

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of time between Plaintiff’s last request and his present request to establish the

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exceptional circumstances needed to warrant the appointment of counsel at this time.

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LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

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The Court notes that Plaintiff has recently and successfully filed a First
Amended Complaint, which was accepted by the Court on September 30, 2015.
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15cv308 BTM (BGS)

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[ECF No. 37.] Defendants’ response is not due until November 4, 2015. [ECF No.

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43.] Due to the early stage of these proceedings, with no response from Defendants

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on file, the Court cannot make a determination at this time on Plaintiff’s likelihood

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of success on the merits of his claims in the First Amended Complaint.

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Nevertheless, review of the First Amended Complaint indicates that the issues of

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cruel and unusual punishment and deliberate indifference as presented therein are

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not particularly complex. Because exceptional circumstances have not been shown

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at this point to warrant appointment of counsel, Plaintiff’s motion for appointment of

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counsel is DENIED without prejudice.

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IT IS SO ORDERED.
DATED: October 20, 2015
Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court

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15cv308 BTM (BGS)