Crumb v. Hasselblad et al

Filing 43

ORDER Denying Motion for Appointment of Counsel [ECF No. 39 ]. The Court finds that "exceptional circumstances"warranting appointment of counsel under 28 U.S.C. § 1915(e)(1) do not exist in this case. Accordingly, Plaintiff's request for appointment of counsel is denied. Signed by Magistrate Judge Nita L. Stormes on 10/27/2017. (All non-registered users served via U.S. Mail Service)(lrf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FRAYNO CRUMB,

Case No.: 16cv581-BTM (NLS)
Plaintiff,

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v.

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

M. HASSELBLAD, et al.,

[ECF No. 39]
Defendants.

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Before the Court is plaintiff Frayno Crumb’s (“Plaintiff”) motion for appointment

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of counsel. ECF No. 39. Plaintiff is incarcerated at the R. J. Donovan State Prison. He

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is proceeding pro se and in forma pauperis and has filed a civil complaint pursuant to 42

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U.S.C. § 1983. ECF No. 31.

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Plaintiff asks this Court to appoint counsel because: (1) he has been housed in

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administrative segregation since July 21, 2017, and has been deprived of sufficient access

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to legal text books (he states that he is not computer literate) and legal aid by the law

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library clerk, as well as hindered in his ability to litigate his case, (2) he has been

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threatened by officers in administrative segregation that he will not be allowed access to

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legal assistance, (3) Defendant Strayhorn has threatened on an almost daily basis that if

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Plaintiff does not drop his lawsuit, Defendant Strayhorn will have Plaintiff attacked when
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he goes back to the yard, (4) most of his legal work and legal text books were stolen or

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thrown away upon his arrival in administrative segregation, and (5) Plaintiff has only a

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9.0 grade point average (“GPA”) 1. ECF No. 39. Additionally, he contends that the

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issues in the case have become complex and will require significant research and

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investigation. Id. He believes that counsel would be better able to present evidence and

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cross-examine witnesses at trial. Id.

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I.

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

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LEGAL STANDARD

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

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

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

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296, 310 (1989). They do, however, have discretion pursuant to 28 U.S.C. § 1915(e)(1)

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to request that an attorney represent an indigent civil litigant upon a showing of

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“exceptional circumstances.” Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103

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(9th Cir. 2004). Finding exceptional circumstances entails “an evaluation of both the

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‘likelihood of success on the merits and the ability of the petitioner to articulate his

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claims pro se in light of the complexity of the legal issues involved.’ Neither of these

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factors is dispositive and both must be viewed together before reaching a decision.”

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986)).

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II.

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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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The Court is uncertain of what GPA scale Plaintiff is referring to, but Plaintiff appears to imply that
this number is low.
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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. Without any 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

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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

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F.3d 965, 970 (9th Cir. 2009). The Court has reviewed Plaintiff’s Second Amended

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

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Plaintiff is very articulate and the Court understands the factual basis for Plaintiff’s

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claims and the relief sought. Plaintiff has demonstrated that he has a good grasp of

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litigation procedure, as evidenced by his pleadings, motions, and other submissions.

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With regard to Plaintiff’s specific concerns, the Court finds that these issues do not

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sufficiently impair Plaintiff’s ability to articulate his claims going forward. For instance,

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the Court finds that appointment of counsel is not necessary to address Plaintiff’s

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allegations about being denied access to legal research materials and being limited in his

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ability to litigate his case while he is in administrative segregation because the Court has

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addressed these concerns in separate orders. Specifically, the Court recently granted

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Plaintiff a significant extension of time in which to conduct fact discovery. ECF No. 42.

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The Court also ordered Defendants to arrange a meet and confer with Plaintiff regarding

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his outstanding interrogatories and the Court set a briefing schedule, should the parties be

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unable to resolve their dispute. ECF No. 37. 2

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Plaintiff’s claim that his legal work was taken when he was moved to administrative segregation is an
issue Plaintiff should raise first within the prison grievance system.
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To the extent Plaintiff suggests that he has a low GPA and may not be able to

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handle the research and investigation required by this case, the Court finds that Plaintiff’s

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impressively well-written and supported filings belie his claim that he is not mentally up

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to the task of prosecuting his case. See United States v. $292,888.04 in U.S. Currency,

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54 F.3d 564, 569 (9th Cir. 1995), as amended (May 24, 1995) (quoting Terrell, 935 F.2d

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at 1017) (upholding district court’s denial of appointment of counsel where the plaintiff

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“demonstrated sufficient writing ability and legal knowledge to articulate his claim”).

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Plaintiff obtained and filed eight sworn witness declarations in support of his Second

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Amended Complaint, as well as medical records and relevant inmate grievances. ECF

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No. 31. He has demonstrated a good understanding of relevant constitutional and legal

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provisions in evaluating his pleadings and Defendants’ motion to dismiss. Recently, he

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argued successfully for leave to amend his complaint as well as for an extension of the

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fact discovery cutoff. ECF Nos. 27, 41. These examples all demonstrate Plaintiff’s

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ability to navigate civil litigation and effectively articulate his claims.

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On a final note, Plaintiff asserts that one of the defendants continues to threaten

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him with harm. While this is a serious allegation, it is not one likely to be remedied by

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the appointment of counsel. Plaintiff’s safety on the yard is not something an attorney

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would be able to ensure from the outside. Moreover, safety issues simply are not one of

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the factors considered by the Wilborn test.

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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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III.

CONCLUSION

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For the foregoing reasons, the Court finds that “exceptional circumstances”

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warranting appointment of counsel under 28 U.S.C. § 1915(e)(1) do not exist in this case.

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

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IT IS SO ORDERED.
Dated: October 27, 2017

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