Wilson v. Cuevas et al

Filing 58

ORDER denying 57 Motion to Appoint Counsel. Signed by Magistrate Judge Michael S. Berg on 12/7/2018. (All non-registered users served via U.S. Mail Service)(sjm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16cv2100-BTM (MSB)

GERALD WILSON,
Plaintiff,

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ORDER DENYING PLAINTIFF'S MOTION
FOR APPOINTMENT OF COUNSEL

v.
A. CUEVAS, et al.,

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Defendants.

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On December 3, 2018, Plaintiff Gerald Wilson (“Plaintiff”) submitted a motion for

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appointment of counsel that the Court accepted on discrepancy on December 4, 2018.

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(See ECF Nos. 56 and 57.) Plaintiff’s primary argument in support of his request for

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counsel is that his “failing health will greatly limit his ability to continue to litigate this

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case.” (See ECF No. 57 at 1.) In support of this premise, Plaintiff explains that he has

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developed moderate degenerative arthritis in his cervical spine, he experiences

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cramping in his fingers and toes with severe pain that renders him unable to walk at

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times, he takes pain medication three times daily, and he walks with a cane and is

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permanently disabled. (Id. at 2-3.) He also correctly notes that the case has a pending

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motion to compel with a filing deadline and a Mandatory Settlement Conference set

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before the Court. (Id. at 3.) Additionally, Plaintiff states that he cannot afford an

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attorney; the issues in his case are complex; the defendants appear unwilling to settle;
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an attorney would be able to help with the writing and typing in this case, the

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presentation of evidence, and the cross examination of witnesses; and that his case “will

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suffer great prejudice if the Court does not appoint counsel.” (Id. at 1-3.)

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I.

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RELEVANT BACKGROUND

Plaintiff, a California prisoner proceeding pro se and in forma pauperis, filed this

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civil rights case alleging violations of the First and Eighth Amendments against state

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prison correctional officers arising from interactions between Plaintiff and Defendants

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on Janaury 27, 2016, culminating with what Plaintiff described as excessive use of force

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by Defendants against Plaintiff. (Compl. 13-16, ECF No. 1.) Defendants in this case have

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filed both a motion to dismiss [ECF No. 20] and a motion for partial summary judgment

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[ECF No. 21]. The District Court granted Defendants’ Motion for Summary Judgment of

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Plaintiffs’ Eighth Amendment claim for deliberate indifference to serious medical needs,

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finding that Plaintiff had not administratively exhausted that claim, and denied

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Defendants’ Motion to Dismiss for failure to state a claim. (Order 12, 16, ECF No. 29.)

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The Court issued a Case Management Conference Order on February 16, 2018, and will

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hold a Mandatory Settlement Conference on January 16, 2019. (Orders, ECF Nos. 32,

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54.)

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The parties submitted a Joint Discovery Plan on March 15, 2018. (ECF No. 34.)

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Both the instant motion and Plaintiff’s motion to compel further responses to his

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Requests for Production of Documents (ECF No. 50, filed October 15, 2018) are currently

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pending before this Court.

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II.

LEGAL STANDARD

The Constitution provides no right to appointment of counsel in a civil case unless

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an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v.

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Dep’t Soc. Servs., 452 U.S. 18, 25 (1981). However, under 28 U.S.C. § 1915(e)(1), courts

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have the authority to “request” that an attorney represent indigent civil litigants upon a

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

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1103 (9th Cir. 2004). When assessing whether exceptional circumstances exist, the
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Court must undergo “an evaluation of both ‘the likelihood of success on the merits [and]

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

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legal issues involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)

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(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Courts must review both

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of these factors before deciding whether to appoint counsel, and neither factor is

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individually dispositive. Id.

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II.
A.

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ANALYSIS

Likelihood of Success on the Merits
A plaintiff that provides no evidence of his likelihood of success at trial fails to

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satisfy the first factor of the Wilborn test. See, e.g., Bailey v. Lawford, 835 F. Supp. 550,

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552 (S.D. Cal. 1993) (finding that where the plaintiff offered “no evidence other than his

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own assertions to support his claims,” he failed to satisfy the first Wilborn factor). The

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Court notes that Plaintiff has not presented evidence to the Court regarding the

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likelihood of his success on the merits of his two remaining claims for Excessive Use of

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Force in violation of the Eighth Amendment and Retaliation in violation of the First

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Amendment. (See ECF No. 29.) Though the allegations Plaintiff raised in his complaint

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regarding his two remaining claims are sufficient to state a claim for relief (see ECF Nos.

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1 and 29), it is premature for the Court to determine the strength of his claims. For this

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reason, this factor does not support the appointment of counsel.

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B.

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Plaintiff’s Ability to Articulate his Claims
Where a pro se civil rights plaintiff shows he has a good grasp of basic litigation

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procedure and has articulated his claims adequately, he does not demonstrate the

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exceptional circumstances required for the appointment of counsel. See Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (finding that the second Wilborn factor was not

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satisfied where the District Court observed Plaintiff “was well-organized, made clear

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points, and presented evidence effectively”). The Court has reviewed all of the

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documents filed by Plaintiff in this case including the instant motion, the complaint [ECF

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No. 1], Declaration [ECF No. 5], motion to proceed in forma pauperis [ECF No. 6], notices
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of change of address [ECF Nos. 7, 37, 38, 39, 40, 41, and 42], motion for extension of

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time to file opposition [ECF No. 24], response in opposition to motion for partial

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summary judgment [ECF No. 27], response to Order to Show Cause [ECF No. 30], Notice,

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Consent, and Reference of a Civil Case to a Magistrate Judge [ECF No. 36], motion for

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leave to appear telephonically at Mandatory Settlement Conference [ECF No. 46], and

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motion to compel responses to discovery [ECF No. 50]. From this review, it is clear to

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the Court that Plaintiff is able to articulate his claims and navigate civil procedure

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without legal assistance. Although Plaintiff claims this case is complex [ECF No. 57 at 2],

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the Court notes that the two claims remaining in the case have been clearly pled and

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survived Defendants’ Motion to Dismiss. (See ECF No. 29.) Additionally, the parties

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have represented that discovery in the case “will not be extensive” and is “very

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focused.” (Joint Discovery Plan, ECF No. 34 at 4.)

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Plaintiff’s submissions to date and the parties representations in the Joint

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Discovery Plan demonstrate to the Court that the complexity of this case does not

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exceed Plaintff’s abilities. While the Court is sympathetic to Plaintiff’s identified health

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concerns, it does not appear that the described conditions are exceptional

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circumstances that interfere with his continued ability to advocate for his position, such

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that they justify appointment of counsel. To the extent that Plaintiff requests an

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attorney to assist him with presentation of evidence and cross examination of

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witnesses, most prisoners in civil rights cases would prefer the expertise of an attorney.

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As such, lacking legal expertise is the norm rather than an exceptional circumstance.

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See, e.g., Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990) (denying

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

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library and lacked a legal education).

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III.

CONCLUSION AND ORDER

Viewing the Wilborn factors together, Plaintiff has not shown that he enjoys a

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likelihood of success on the merits or that he is not able to articulate his claims and

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litigate his case without the assistance of an attorney. The Court finds Plaintiff has not
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established exceptional circumstances required for the appointment of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). The Court, therefore, DENIES Plaintiff’s motion for

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appointment of counsel without prejudice.

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IT IS SO ORDERED.

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Dated: December 7, 2018

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______________________________
Honorable Michael S. Berg
United States Magistrate Judge

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16cv2100-BTM (MSB)