Fletcher v. Quin et al

Filing 42

ORDER Denying 41 Motion for Appointment of Counsel. Signed by Magistrate Judge Nita L. Stormes on 2/13/18. (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 GREGORY L. FLETCHER, Case No.: 3:15-cv-2156-GPC-NLS Plaintiff, 12 13 v. 14 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL C/O QUIN, et al., [ECF No. 41] Defendants. 15 16 17 Before the Court is the plaintiff Gregory Fletcher’s (“Plaintiff”) motion for 18 appointment of counsel. ECF No. 41. Plaintiff, a prisoner proceeding pro se and in 19 forma pauperis, filed this civil rights action alleging denial of medical care, cruel and 20 unusual punishment, and violations of his freedoms of association, speech, and religion. 21 See ECF No. 6. 22 I. PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL 23 Plaintiff asks this Court to appoint counsel from the Court’s pro bono panel. ECF 24 No. 41. Plaintiff states that his case is complex and he is limited in his ability to litigate 25 due to his incarceration, limited access to the law library, and limited knowledge of the 26 law. Id. at 2. Plaintiff notes that an attorney would better enable him to present evidence 27 and cross-examine witnesses. Id. Plaintiff also represents that he suffers from many 28 forms of mental health issues, is mobility impaired, and has severe glaucoma in both 1 3:15-cv-2156-GPC-NLS 1 eyes. Id. Plaintiff states that he did not graduate high school or receive a GED and is 2 limited in his reading abilities. Id. 3 4 II. LEGAL STANDARD “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 5 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). In pro se and in 6 forma pauperis proceedings, district courts do not have the authority “to make coercive 7 appointments of counsel.” Mallard v. United States District Court, 490 U.S. 296, 310 8 (1989). But they do have discretion to request that an attorney represent indigent civil 9 litigants upon a showing of “exceptional circumstances.” 28 U.S.C. § 1915(e)(1); 10 11 Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Finding exceptional circumstances entails “an evaluation of both the ‘likelihood of 12 success on the merits and the ability of the plaintiff to articulate his claims pro se in light 13 of the complexity of the legal issues involved.’ Neither of these issues is dispositive and 14 both must be viewed together before reaching a decision.” Terrell v. Brewer, 935 F.2d 15 1015, 1017 (9th Cir. 1991), quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 16 1986). 17 18 19 Here, Plaintiff fails to satisfy either factor of the Wilborn test. III. DISCUSSION A. Likelihood of Success on the Merits 20 Plaintiff’s motion for appointment of counsel does not address likelihood of 21 success and offers no evidence beyond Plaintiff’s assertion that the issues presented are 22 “complex.” Bald assertions that claims are meritorious without any supporting evidence 23 fail to satisfy the first factor of the Wilborn test. Bailey v. Lawford, 835 F. Supp. 550, 24 552 (S.D. Cal. 1993) (concluding likelihood of success not shown where the plaintiff did 25 not present any evidence other than his own assertions to support his claims). At this 26 stage of the case, the Court has only the pleadings before it and, thus, is unable to make a 27 determination of the strength of Plaintiff’s case. At this early stage of the case, when the 28 parties have not yet completed discovery and have not presented evidence to the Court in 2 3:15-cv-2156-GPC-NLS 1 support of their claims and defenses, the Court cannot find that Plaintiff is likely to 2 succeed on the merits of his claims. See Garcia v. Smith, No. 10-cv1187-AJB (RBB), 3 2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) (denying motion for appointment of 4 counsel when it was too early to determine whether any of plaintiff’s claims would 5 survive a motion for summary judgment). Without any additional evidence supporting a 6 likelihood of success on the merits, Plaintiff has not satisfied the first Wilborn factor. 7 8 9 B. Plaintiff’s Ability to Articulate His Claims Where a pro se civil rights plaintiff shows he has a good grasp of basic litigation procedure and has been able to adequately articulate his claims, he does not demonstrate 10 exceptional circumstances to warrant appointing counsel. See Palmer v. Valdez, 560 F.3d 11 965, 970 (9th Cir. 2009). The Court has reviewed Plaintiff’s Amended Complaint and 12 other pleadings and finds that the issues he raises are not complex. The Court 13 understands the factual basis for Plaintiff’s claims and the relief sought. Plaintiff has 14 demonstrated that he has a good grasp of litigation procedure, as evidenced by his 15 pleadings, motions, and other submissions. 16 Plaintiff contends that he is an Enhanced Outpatient Program (EOP)/ADA plaintiff 17 who suffers from several mental health issues. Mental impairment may be grounds for 18 appointment of counsel in certain situations, but the impairment must be an 19 “incapacitating mental disability” and the plaintiff “must present substantial evidence of 20 incompetence.” Meeks v. Nunez, No. 13CV973-GPC (BGS), 2017 WL 476425, at *3 21 (S.D. Cal. Feb. 6, 2017). The court must be able to find a nexus between the mental 22 disorder and the plaintiff’s ability to articulate his claims. See McElroy v. Cox, Civil No. 23 08-1221-JM (AJB), 2009 WL 4895360 at *2 (E.D. Cal. Dec. 11, 2009). Here, Plaintiff 24 has not submitted any medical evidence to substantiate the scope of mental impairment 25 nor has he submitted any information to demonstrate how his mental impairment would 26 impair his prosecution on this case. See Meeks, 2017 WL 476425, at *3 (denying 27 appointment of counsel when plaintiff submitted “Inmate Request for Assistance from 28 the Court” asserting a mental impairment of “Schizoaffective Disorder” signed by a 3 3:15-cv-2156-GPC-NLS 1 forensic psychologist but failed to submit actual medical records); West v. Dizon, No. 2 2:12-CV-1293-DAD P, 2014 WL 114659, at *4 (E.D. Cal. Jan. 9, 2014) (denying 3 appointment of counsel when mental disability was only alleged and plaintiff submitted 4 no evidence as to the “nature or effects” of the disability). Without more specific 5 information regarding his mental impairment, the Court does not find exceptional 6 circumstances due to Plaintiff’s mental status. Jones v. Kuppinger, 2:13-CV-0451 WBS 7 AC, 2015 WL 5522290, at *3-4 (E.D. Cal. Sept. 17, 2015) (“Circumstances common to 8 most prisoners, such as a deficient general education, lack of knowledge of the law, 9 mental illness and disability, do not in themselves establish exceptional circumstances 10 warranting appointment of voluntary civil counsel.”). 11 Plaintiff also notes that he suffers from glaucoma in both eyes and is awaiting 12 surgery. While sympathetic to Plaintiff’s condition, the Court notes that Plaintiff has also 13 not provided any information regarding either the degree of this impairment or its effect 14 on his ability to litigate. Without more, the Court also cannot find that this physical 15 condition requires appointment of counsel. McKenzie v. Casillas, No. 12CV1602-BEN 16 (RBB), 2013 WL 1628967, at *5 (S.D. Cal. Apr. 16, 2013) (denying appointment of 17 counsel where plaintiff suffered from glaucoma and lost sight in one eye because he 18 failed to demonstrate how his physical condition impaired his ability to proceed pro se). 19 Plaintiff next argues that counsel would better enable him to present evidence and 20 examine witnesses. As another court in this district noted, there is “no doubt [that] most 21 pro se litigants . . . would be better served with the assistance of counsel.” Garcia v. Cal. 22 Dep’t of Corrections & Rehab., No. 12-cv-1084-IEG (KSC), 2013 WL 485756, at *1 23 (S.D. Cal. Feb. 6, 2013). Whether a litigant would have fared better with counsel is not 24 the test for appointment of counsel. Thornton v. Schwarzenegger, No. 10CV01583-BTM 25 (RBB), 2010 WL 3910446, at *5 (S.D. Cal. Oct. 4, 2010). Moreover, federal courts 26 employ other procedures that help to protect a pro se litigant’s rights. See Haines v. 27 Kerner, 404 U.S. 519, 520 (1972). For example, in pro se civil rights cases, a court must 28 4 3:15-cv-2156-GPC-NLS 1 construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim- 2 Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). 3 Plaintiff also claims that he has limited access to the law library and legal materials 4 and unfamiliarity with the law. This is again common to most incarcerated plaintiffs and 5 does not establish exceptional circumstances. See, e.g., Wood v. Housewright, 900 F.2d 6 1332, 1335-36 (9th Cir. 1990) (denying appointment of counsel where plaintiff 7 complained that he had limited access to law library and lacked a legal education); 8 Galvan v. Fox, No. 2:15-CV-01798-KJM (DB), 2017 WL 1353754, at *8 (E.D. Cal. Apr. 9 12, 2017) (“Circumstances common to most prisoners, such as lack of legal education 10 and limited law library access, do not establish exceptional circumstances that warrant a 11 request for voluntary assistance of counsel.”). 12 In sum, the Court finds that Plaintiff is sufficiently able to articulate his claims pro 13 se, given the complexity of the issues involved. The second Wilborn factor is not 14 satisfied. 15 IV. CONCLUSION 16 For the foregoing reasons, the Court thus does not find the “exceptional 17 circumstances” required for appointment of counsel under 28 U.S.C. § 1915(e)(1). 18 Accordingly, Plaintiff’s request for appointment of counsel is DENIED. 19 20 IT IS SO ORDERED. Dated: February 13, 2018 21 22 23 24 25 26 27 28 5 3:15-cv-2156-GPC-NLS

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