Briceno v. Williams et al

Filing 27

ORDER denying 26 Motion to Appoint Counsel without prejudice. Signed by Magistrate Judge Mitchell D. Dembin on 5/15/2018. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
MARCUS D. BRICENO,

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Case No.: 16cv1665-JAH-MDD
Plaintiff,

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v.

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BLAKE WILLIAMS, San Diego Police

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
WITHOUT PREJUDICE
[ECF NO. 26]

Officer, et al.,

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Defendants.

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Plaintiff Marcus Briceno again seeks appointment of counsel, but this time attached

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several medical records which indicate that he suffers from back and leg pain and has a

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recommendation for additional surgery pending. Briceno argues that these records make it

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clear that he is in too much pain to successfully litigate his excessive force case, and

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therefore requests that the Court appoint him counsel.

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“Generally, a person has no right to counsel in civil actions,” Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009), and, even under 28 U.S.C. § 1915(e)(1) (the statutory grant

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of authority to recruit counsel in civil cases), the Court cannot force counsel to represent

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an indigent civil litigant. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S.

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296, 310 (1989) (holding that § 1915 “does not authorize the federal courts to make

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coercive appointments of counsel”). But, “a court may under ‘exceptional circumstances’

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appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer,
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16cv1665-JAH-MDD

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560 F.3d at 970 (citation omitted). “When determining whether exceptional circumstances

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exist, a court must consider the likelihood of success on the merits as well as the ability of

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

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involved.” Id. (citation and quotation marks omitted).

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Briceno has not shown exceptional circumstances. The likelihood of success on the

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merits does not appear to be high―the complaint and pending motion to dismiss suggest

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that his claim is likely untimely unless Briceno can suggest a basis for some form of tolling.

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Moreover, Briceno’s excessive force claim is, like most excessive force claims, not

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particularly complex. See Price v. Kamer, 993 F. Supp. 1295, 1298 (C.D. Cal. 1997) (“With

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rare exceptions, excessive force cases are simple, rather than complex cases. Excessive

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force cases almost always involve very few events which happened over a very short time

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span. There tend to be relatively few witnesses, and the dispositive disputes almost always

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involve the credibility of witnesses.” (emphasis omitted)). Finally, although the Court does

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not discredit or seek to minimize the pain Briceno is suffering, nothing in the attached

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records suggest his condition is so severe as to prevent him from responding to the pending

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motion to dismiss.

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Although the Court denies the request for recruited counsel at this time, it does so

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without prejudice. Should Briceno prevail over the pending motion to dismiss, the calculus

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may change and justify Briceno seeking counsel again at that time.

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Dated: May 15, 2018

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16cv1665-JAH-MDD