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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GREGORY L. FLETCHER,

Case No.: 3:15-cv-2156-GPC-NLS
Plaintiff,

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v.

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

C/O QUIN, et al.,

[ECF No. 41]
Defendants.

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Before the Court is the plaintiff Gregory Fletcher’s (“Plaintiff”) motion for

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appointment of counsel. ECF No. 41. Plaintiff, a prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action alleging denial of medical care, cruel and

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unusual punishment, and violations of his freedoms of association, speech, and religion.

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See ECF No. 6.

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I.

PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL

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Plaintiff asks this Court to appoint counsel from the Court’s pro bono panel. ECF

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No. 41. Plaintiff states that his case is complex and he is limited in his ability to litigate

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due to his incarceration, limited access to the law library, and limited knowledge of the

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law. Id. at 2. Plaintiff notes that an attorney would better enable him to present evidence

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and cross-examine witnesses. Id. Plaintiff also represents that he suffers from many

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forms of mental health issues, is mobility impaired, and has severe glaucoma in both
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eyes. Id. Plaintiff states that he did not graduate high school or receive a GED and is

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limited in his reading abilities. Id.

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II.

LEGAL STANDARD

“[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution

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Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). In pro se and in

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forma pauperis proceedings, district courts do not have the authority “to make coercive

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appointments of counsel.” Mallard v. United States District Court, 490 U.S. 296, 310

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(1989). But they do have discretion to request that an attorney represent indigent civil

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litigants upon a showing of “exceptional circumstances.” 28 U.S.C. § 1915(e)(1);

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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

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success on the merits and the ability of the plaintiff to articulate his claims pro se in light

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of the complexity of the legal issues involved.’ Neither of these issues is dispositive and

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both must be viewed together before reaching a decision.” Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991), quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986).

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Here, Plaintiff fails to satisfy either factor of the Wilborn test.
III.

DISCUSSION
A. Likelihood of Success on the Merits

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Plaintiff’s motion for appointment of counsel does not address likelihood of

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success and offers no evidence beyond Plaintiff’s assertion that the issues presented are

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“complex.” Bald assertions that claims are meritorious without any supporting evidence

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fail to satisfy the first factor of the Wilborn test. Bailey v. Lawford, 835 F. Supp. 550,

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552 (S.D. Cal. 1993) (concluding likelihood of success not shown where the plaintiff did

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not present any evidence other than his own assertions to support his claims). At this

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stage of the case, the Court has only the pleadings before it and, thus, is unable to make a

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determination of the strength of Plaintiff’s case. At this early stage of the case, when the

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parties have not yet completed discovery and have not presented evidence to the Court in
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support of their claims and defenses, the Court cannot find that Plaintiff is likely to

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succeed on the merits of his claims. See Garcia v. Smith, No. 10-cv1187-AJB (RBB),

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2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) (denying motion for appointment of

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counsel when it was too early to determine whether any of plaintiff’s claims would

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survive a motion for summary judgment). Without any additional evidence supporting a

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likelihood of success on the merits, Plaintiff has not satisfied the first Wilborn factor.

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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

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exceptional circumstances to warrant appointing counsel. See Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009). The Court has reviewed Plaintiff’s Amended Complaint and

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other pleadings and finds that the issues he raises are not complex. The Court

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understands the factual basis for Plaintiff’s claims and the relief sought. Plaintiff has

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demonstrated that he has a good grasp of litigation procedure, as evidenced by his

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pleadings, motions, and other submissions.

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Plaintiff contends that he is an Enhanced Outpatient Program (EOP)/ADA plaintiff

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who suffers from several mental health issues. Mental impairment may be grounds for

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appointment of counsel in certain situations, but the impairment must be an

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“incapacitating mental disability” and the plaintiff “must present substantial evidence of

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incompetence.” Meeks v. Nunez, No. 13CV973-GPC (BGS), 2017 WL 476425, at *3

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(S.D. Cal. Feb. 6, 2017). The court must be able to find a nexus between the mental

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disorder and the plaintiff’s ability to articulate his claims. See McElroy v. Cox, Civil No.

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08-1221-JM (AJB), 2009 WL 4895360 at *2 (E.D. Cal. Dec. 11, 2009). Here, Plaintiff

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has not submitted any medical evidence to substantiate the scope of mental impairment

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nor has he submitted any information to demonstrate how his mental impairment would

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impair his prosecution on this case. See Meeks, 2017 WL 476425, at *3 (denying

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appointment of counsel when plaintiff submitted “Inmate Request for Assistance from

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the Court” asserting a mental impairment of “Schizoaffective Disorder” signed by a
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forensic psychologist but failed to submit actual medical records); West v. Dizon, No.

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2:12-CV-1293-DAD P, 2014 WL 114659, at *4 (E.D. Cal. Jan. 9, 2014) (denying

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appointment of counsel when mental disability was only alleged and plaintiff submitted

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no evidence as to the “nature or effects” of the disability). Without more specific

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information regarding his mental impairment, the Court does not find exceptional

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circumstances due to Plaintiff’s mental status. Jones v. Kuppinger, 2:13-CV-0451 WBS

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AC, 2015 WL 5522290, at *3-4 (E.D. Cal. Sept. 17, 2015) (“Circumstances common to

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most prisoners, such as a deficient general education, lack of knowledge of the law,

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mental illness and disability, do not in themselves establish exceptional circumstances

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warranting appointment of voluntary civil counsel.”).

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Plaintiff also notes that he suffers from glaucoma in both eyes and is awaiting

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surgery. While sympathetic to Plaintiff’s condition, the Court notes that Plaintiff has also

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not provided any information regarding either the degree of this impairment or its effect

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on his ability to litigate. Without more, the Court also cannot find that this physical

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condition requires appointment of counsel. McKenzie v. Casillas, No. 12CV1602-BEN

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(RBB), 2013 WL 1628967, at *5 (S.D. Cal. Apr. 16, 2013) (denying appointment of

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counsel where plaintiff suffered from glaucoma and lost sight in one eye because he

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failed to demonstrate how his physical condition impaired his ability to proceed pro se).

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Plaintiff next argues that counsel would better enable him to present evidence and

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examine witnesses. As another court in this district noted, there is “no doubt [that] most

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pro se litigants . . . would be better served with the assistance of counsel.” Garcia v. Cal.

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Dep’t of Corrections & Rehab., No. 12-cv-1084-IEG (KSC), 2013 WL 485756, at *1

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(S.D. Cal. Feb. 6, 2013). Whether a litigant would have fared better with counsel is not

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the test for appointment of counsel. Thornton v. Schwarzenegger, No. 10CV01583-BTM

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(RBB), 2010 WL 3910446, at *5 (S.D. Cal. Oct. 4, 2010). Moreover, federal courts

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employ other procedures that help to protect a pro se litigant’s rights. See Haines v.

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Kerner, 404 U.S. 519, 520 (1972). For example, in pro se civil rights cases, a court must

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construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-

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Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988).

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Plaintiff also claims that he has limited access to the law library and legal materials

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and unfamiliarity with the law. This is again common to most incarcerated plaintiffs and

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does not establish exceptional circumstances. See, e.g., Wood v. Housewright, 900 F.2d

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1332, 1335-36 (9th Cir. 1990) (denying appointment of counsel where plaintiff

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complained that he had limited access to law library and lacked a legal education);

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Galvan v. Fox, No. 2:15-CV-01798-KJM (DB), 2017 WL 1353754, at *8 (E.D. Cal. Apr.

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12, 2017) (“Circumstances common to most prisoners, such as lack of legal education

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and limited law library access, do not establish exceptional circumstances that warrant a

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request for voluntary assistance of counsel.”).

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In sum, the Court finds that Plaintiff is sufficiently able to articulate his claims pro

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se, given the complexity of the issues involved. The second Wilborn factor is not

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satisfied.

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IV.

CONCLUSION

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For the foregoing reasons, the Court thus does not find the “exceptional

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circumstances” required for appointment of counsel under 28 U.S.C. § 1915(e)(1).

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Accordingly, Plaintiff’s request for appointment of counsel is DENIED.

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IT IS SO ORDERED.
Dated: February 13, 2018

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