Duran v. Mandujano et al

Filing 31

ORDER Denying 30 Motion to Appoint Counsel without Prejudice. Signed by Magistrate Judge William V. Gallo on 7/27/2016. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID B. DURAN,

Case No.: 15-CV-2745-DMS (WVG)
Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL

v.
MANDUJANO, et al.,

[DOC. NO. 30]
Defendants.

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I.

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This is a civil rights case under 42 U.S.C. § 1983 in which Plaintiff David B. Duran,

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an inmate currently housed at the California Rehabilitation Facility, is proceeding pro se

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and in forma pauperis. On December 7, 2015, Plaintiff filed the instant Complaint,

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alleging that, while he was an inmate at the Regional Adult Detention Facility in Imperial

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County, California, the Defendant police officers served him with a search warrant to

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retrieve his DNA against his will. (Doc. No. 1 at 4.) Plaintiff claims that he was transported

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by Defendants to Brawley Memorial Hospital, where he was forcefully restrained despite

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his protests, and his blood was extracted against his will. Id. at 4-8.

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INTRODUCTION

On July 25, 2016, Plaintiff filed a Motion for Appointment of Counsel. (Doc. No.
30.) That Motion is currently before the Court.

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15-CV-2745-DMS (WVG)

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II.

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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. United States District Court, 490 U.S. 296, 310 (1989); see also

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

APPLICABLE LAW

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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

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v. 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.

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To date, Plaintiff has filed his Complaint, and the Defendants have filed Answers.

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On June 28, 2016, the Court issued a Scheduling Order which initiated the discovery

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process. (Doc. No. 17.) At this stage of the litigation, the Court is unable to determine

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whether Plaintiff will succeed on the merits. The Court has read the Complaint, and finds

DISCUSSION

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15-CV-2745-DMS (WVG)

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that Plaintiff is able to articulate his claims pro se, and that the issues presented are not

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particularly complex.

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appointment of counsel do not exist. Accordingly, the Court hereby DENIES Plaintiff’s

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motion for appointment of counsel WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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Dated: July 27, 2016

Thus, the exceptional circumstances which might require the

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15-CV-2745-DMS (WVG)