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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 SOUTHERN DISTRICT OF CALIFORNIA Marcus D. BRICENO, 11 Case No.: 16-cv-1665-JAH-AGS Plaintiff, 12 v. 13 ORDER DENYING MOTION FOR APPOINTED COUNSEL (ECF No. 40) Blake WILLIAMS, et al., 14 Defendants. 15 16 For the third time, plaintiff Marcus Briceno seeks appointed counsel. The last two 17 times, he sought counsel because of medical issues that he alleged interfered with his ability 18 to litigate his case. This time, he argues that he is “unlearned” in “the matters of law” and 19 has limited access to the prison’s law library. (ECF No. 40, at 1.) 20 “Generally, a person has no right to counsel in civil actions,” Palmer v. Valdez, 560 21 F.3d 965, 970 (9th Cir. 2009), and, even under the statutory authority to recruit counsel in 22 civil cases, the Court cannot force attorneys to represent an indigent civil litigant. See 23 Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 310 (1989) (holding that 24 the relevant statute—28 U.S.C. § 1915— “does not authorize the federal courts to make 25 coercive appointments of counsel”). But “a court may under ‘exceptional circumstances’ 26 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer, 27 560 F.3d at 970 (citation omitted). “When determining whether exceptional circumstances 28 exist, a court must consider the likelihood of success on the merits as well as the ability of 1 16-cv-1665-JAH-AGS 1 the petitioner to articulate his claims pro se in light of the complexity of the legal issues 2 involved.” Id. (citation and quotation marks omitted). 3 As this case is still in its substantive infancy—so far Briceno has successfully fended 4 off a motion to dismiss based on timeliness—it is unclear what his likelihood of success 5 on the merits may be. But, as already pointed out in both previous orders, Briceno’s 6 excessive force claim is, like most excessive force claims, not particularly complex. See 7 Price v. Kamer, 993 F. Supp. 1295, 1298 (C.D. Cal. 1997) (“With rare exceptions, 8 excessive force cases are simple, rather than complex cases. Excessive force cases almost 9 always involve very few events which happened over a very short time span. There tend to 10 be relatively few witnesses, and the dispositive disputes almost always involve the 11 credibility of witnesses.” (emphasis omitted)). The Court notes that Briceno has been 12 capable of articulating his legal position and conducting legal research; as previously 13 alluded to, he successfully overcame a motion to dismiss his complaint on the grounds of 14 timeliness. (See ECF No. 34.) His filings are well-researched and thoughtful, and so far 15 Briceno has been able to articulate his claims. The motion for appointment of counsel is 16 therefore denied. 17 Dated: January 28, 2019 18 19 20 21 22 23 24 25 26 27 28 2 16-cv-1665-JAH-AGS

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