Briceno v. Williams et al

Filing 42

ORDER Denying Motion for Appointed Counsel (ECF No. 40 ). Signed by Magistrate Judge Andrew G. Schopler on 1/28/2019. (All non-registered users served via U.S. Mail Service) (jdt)

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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.: 16-cv-1665-JAH-AGS
Plaintiff,

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v.

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ORDER DENYING MOTION FOR
APPOINTED COUNSEL (ECF No. 40)

Blake WILLIAMS, et al.,

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Defendants.

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For the third time, plaintiff Marcus Briceno seeks appointed counsel. The last two

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times, he sought counsel because of medical issues that he alleged interfered with his ability

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to litigate his case. This time, he argues that he is “unlearned” in “the matters of law” and

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has limited access to the prison’s law library. (ECF No. 40, at 1.)

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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 the statutory authority to recruit counsel in

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civil cases, the Court cannot force attorneys to represent an indigent civil litigant. See

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Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 310 (1989) (holding that

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the relevant statute—28 U.S.C. § 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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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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16-cv-1665-JAH-AGS

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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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As this case is still in its substantive infancy—so far Briceno has successfully fended

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off a motion to dismiss based on timeliness—it is unclear what his likelihood of success

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on the merits may be. But, as already pointed out in both previous orders, Briceno’s

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excessive force claim is, like most excessive force claims, not particularly complex. See

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Price v. Kamer, 993 F. Supp. 1295, 1298 (C.D. Cal. 1997) (“With rare exceptions,

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excessive force cases are simple, rather than complex cases. Excessive force cases almost

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always involve very few events which happened over a very short time span. There tend to

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be relatively few witnesses, and the dispositive disputes almost always involve the

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credibility of witnesses.” (emphasis omitted)). The Court notes that Briceno has been

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capable of articulating his legal position and conducting legal research; as previously

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alluded to, he successfully overcame a motion to dismiss his complaint on the grounds of

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timeliness. (See ECF No. 34.) His filings are well-researched and thoughtful, and so far

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Briceno has been able to articulate his claims. The motion for appointment of counsel is

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therefore denied.

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Dated: January 28, 2019

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