Griffin v. Zurbano et al

Filing 27

ORDER Denying Without Prejudice Plaintiff's 25 Motion to Appoint Counsel. Signed by Magistrate Judge William V. Gallo on 8/17/2017. (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16-CV-2715-JLS(WVG)

CHARLES E. GRIFFIN, II,
Plaintiff,

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v.

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ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION
TO APPOINT COUNSEL

R. ZURBANO et al.,
Defendants.

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[Doc. No. 25.]

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Plaintiff Charles Griffin, proceeding pro se, brings this action under 42 U.S.C.

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section 1983 against officials of the California Department of Corrections and

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Rehabilitation (“CDCR”) alleging violations of his rights under the First, Eighth, and

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Fourteenth Amendments. He now moves for appointment of counsel, which the Court

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DENIES without prejudice.

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I.

BACKGROUND

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Plaintiff alleges a series of events transpired in 2015 when he was an inmate at the

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R.J. Donovan Correctional Facility in San Diego County. He alleges that a prison doctor

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discontinued his morphine prescription without examining him and claims that two prison

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nurses then lodged falsified complaints that he had threatened them. He claims a lieutenant

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then ordered him housed in administrative segregation without any investigation. As a

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16-CV-2715-JLS(WVG)

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result, he contends he suffered adverse consequences at his parole hearing. He claims

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violations of his First, Eighth, and Fourteenth Amendment rights.

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II.

APPLICABLE LAW

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“There is no constitutional right to appointed counsel in a § 1983 action.” Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (partially overruled en banc on other

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grounds). Thus, federal courts do not have the authority “to make coercive appointments

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of counsel.” Mallard v. U.S. Dist. Ct., 490 U.S. 296, 310 (1989); see also United States v.

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$292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).

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Districts courts do have discretion, however, pursuant to 28 U.S.C. section

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1915(e)(1), to request that an attorney represent indigent civil litigants upon a showing of

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exceptional circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101,

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1103 (9th Cir. 2004). “A finding of the exceptional circumstances of the plaintiff seeking

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assistance requires at least an evaluation of the likelihood of the plaintiff’s success on the

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merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the

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complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991).

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The Court agrees that any pro se litigant “would be better served with the assistance

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of counsel.” Rand, 113 F.3d at 1525; citing Wilborn, 789 F.2d at 1331. However, so long

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as a pro se litigant, like Plaintiff in this case, is able to “articulate his claims against the

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relative complexity of the matter,” the exceptional circumstances which might require the

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appointment of counsel do not exist. Rand, 113 F.3d at 1525 (finding no abuse of discretion

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under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact

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that pro se prisoner “may well have fared better-particularly in the realms of discovery and

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the securing of expert testimony”).

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16-CV-2715-JLS(WVG)

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III.

DISCUSSION

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Plaintiff contends he needs counsel appointed here because he does not have any

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legal education, has a 10th-grade education, is unable to afford counsel, and is unable to

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obtain evidence as well as an attorney. Plaintiff does not qualify for appointment of counsel

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under the rigorous standard explained above.

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First, Plaintiff’s lack of education in the law and 10th-grade education level have not

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prevented him from filing very cogent and well-organized documents. For example, the

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Complaint is one of the better prisoner operative pleadings this Court has seen. It is type-

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written, well-organized, and includes sections that are typically included in complaints

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filed by attorneys. It sets forth the factual allegations of this case quite well. This case is

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not complex, as it does not present novel questions or theories of law, and this area of law

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itself is not complex. Moreover, the Court held a Mandatory Settlement Conference on

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August 17, 2017, during which Plaintiff articulated his position with precision and clarity.

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He was able to recall events and discuss them intelligently and clearly.

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The law in this areas is quite settled. Plaintiff’s factual allegations are also non-

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complex and are in line with similar claims routinely litigated before this Court by pro se

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prisoners. Thus, Plaintiff will not need the assistance of an attorney to research and argue

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some arcane or unclear legal theory at this time. He has done quite well so far on his own

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and will continue to do so without an attorney.

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Second, Plaintiff’s indigence is not a factor the Court considers persuasive given that

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all or nearly all prisoners are indigent, and parties in civil cases are not automatically

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entitled to appointed counsel despite their indigence.

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Finally, although an attorney would be able to better conduct discovery, the

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limitations placed on Plaintiff based on his incarceration are no greater than any other

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prisoner plaintiff. Plaintiff may propound discovery, and he may petition the Court for

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redress if a dispute arises.

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Plaintiff’s request for appointment of counsel is DENIED without prejudice.

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IT IS SO ORDERED.

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DATED: August 17, 2017

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16-CV-2715-JLS(WVG)