Alvarez v. Ko et al

Filing 36

ORDER Denying Plaintiff's Motion for Appointment of Counsel. Signed by Magistrate Judge Nita L. Stormes on 4/3/2017. (All non-registered users served via U.S. Mail Service) (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16-CV-1302-CAB-NLS

VICENTE ARRAIGA ALVAREZ,

v.

Plaintiff, ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT
OF COUNSEL

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(Dkt. No. 34)
DR. S. KO, M.D., et al.,
Defendants.

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Plaintiff Vicente Alvarez (“Plaintiff”), a prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action against Defendants Dr. Ko, Dr.

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McCabe, Dr. Sangha, and Deputy Director Lewis. He alleges claims under the

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Eighth Amendment for deliberate indifference to his medical needs. (Dkt. No. 1.)

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I. Plaintiff’s Request for Appointment of Counsel
Plaintiff asks this Court to appoint him counsel from the Court’s pro bono

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panel. (Dkt. No. 34.) He argues the Court should appoint counsel because (1) he

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does not have ready access to a law library and lacks legal training in the law; (2)

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although he has articulated his claims thus far, he does not possess the legal training

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to effectively present his case, to counter Defendants’ anticipated discovery tactics,
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to conduct discovery, and to identify and obtain an expert; (3) his case is complex

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and requires the expertise of legal counsel, and such assistance would result in the

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just, speedy and inexpensive determination of the action. (Id. at 2-6.) In support,

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Plaintiff asserts that he is likely to succeed on the merits, that the issues in his case

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are complex and his confinement limits his ability to pursue discovery, that an

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attorney will need to present expert testimony, and that an attorney would be better

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equipped to conduct cross-examinations of parties and witnesses on issues of

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credibility. (Id. at 13-25.)

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II. Legal Standard

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

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

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pro se and in forma pauperis proceedings, district courts do not have the authority

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“to make coercive appointments of counsel.” Mallard v. United States District

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Court, 490 U.S. 296, 310 (1989). But they do have discretion to request that an

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attorney represent indigent civil litigants upon a showing of “exceptional

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circumstances.” 28 U.S.C. § 1915(e)(1); Agyeman v. Corrs. Corp. of Am., 390 F.3d

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1101, 1103 (9th Cir. 2004). “A finding of exceptional circumstances requires an

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evaluation of both the ‘likelihood of success on the merits and the ability of the

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plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved.’ Neither of these issues is dispositive and both must be viewed together

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before reaching a decision.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991), quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).1

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Plaintiff cites to out-of-circuit authorities to suggest that he is not required
to show exceptional circumstances, and that the Court should consider other factors.
(Dkt. No. 34 at 12-13 (citing cases).) Those decisions are not binding on this
Court, which sits in the Ninth Circuit, because the Ninth Circuit “has limited the
exercise of that power [under section 1915] to exceptional circumstances.” Aldabe
v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (citations omitted); see also
Agyeman, 390 F.3d at 1103 (“The decision to appoint such counsel is within ‘the
sound discretion of the trial court and is granted only in exceptional
circumstances’”)(citation omitted).
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III. Discussion

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Here, this case is in the early stages, and there is very little before the Court

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regarding the merits of Plaintiff’s case other than the allegations in the Complaint.

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See Dkt. No. 34 at 14-17 (citing to allegations in the Complaint). As a result, it is

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difficult at this time to determine the likelihood that Plaintiff will succeed on the

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merits. See Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) (concluding

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likelihood of success not shown where the plaintiff did not present any evidence

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other than his own assertions to support his claims).

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Further, where a pro se civil rights plaintiff shows he has a good grasp of basic

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litigation procedure and has been able to adequately articulate his claims, he does

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not demonstrate exceptional circumstances to warrant appointing counsel. See

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The Court has reviewed

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Plaintiff’s Complaint and other pleadings and finds that the issues he raises are not

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particularly complex. The Court understands Plaintiff’s claims and the relief

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sought. Plaintiff also demonstrated he has a good grasp on basic litigation

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procedure, as evidenced by his pleadings and submissions.

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Although Plaintiff asserts counsel is needed to engage in discovery and

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potentially secure expert testimony, this does not necessarily amount to exceptional

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circumstances. Wilborn, 789 F.2d at 1331 (“Most actions require development of

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further facts during litigation and a pro se litigant will seldom be in a position to

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investigate easily the facts necessary to support the case. If all that was required to

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establish successfully the complexity of the relevant issues was a demonstration of

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the need for development of further facts, practically all cases would involve

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complex legal issues.”); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997)

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(finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court

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denied appointment of counsel despite fact that pro se prisoner “may well have

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fared better - particularly in the realm of discovery and the securing of expert

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testimony,” because that is not the applicable test). Further, as to Plaintiff’s

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assertion that he has limited access to the law library, such an issue is common to

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many prisoners and also does not amount to exceptional circumstances. See, e.g.,

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990) (upholding denial of

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appointment of counsel where plaintiff complained that he had limited access to

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law library and lacked a legal education). In sum, the Court finds Plaintiff has

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sufficiently put on his case thus far in light of the complexity of the legal issues

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involved, and the circumstances are not exceptional to warrant appointing counsel.

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IV. Conclusion
For the foregoing reasons, Plaintiff has not shown a likelihood of success or

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that the complexity of the case requires appointment of counsel. The Court thus

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does not find the “exceptional circumstances” required for appointment of counsel

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under 28 U.S.C. § 1915(e)(1). Accordingly, Plaintiff’s request for appointment of

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counsel at this time is DENIED.
IT IS SO ORDERED.

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Dated: April 3, 2017

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