Johnson v. Pamplin et al

Filing 8

ORDER denying without prejudice Plaintiff's 7 Ex Parte Motion to Appoint Counsel. Signed by Magistrate Judge Barbara Lynn Major on 5/23/2017. (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17CV560-BAS (BLM)

JAMI JOHNSON,

ORDER DENYING PLAINTIFF'S EX
PARTE MOTION FOR ASSIGNMENT OF
COUNSEL

Plaintiff,

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v.

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D. PAMPLIN, G. VALDOVINAS, A. MASSIA,
M. MORALES, J. HEDDY, O. MORALES, M.
ACUNA, J. WILBORN, AND W. SMITH,

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Defendants.

[ECF No. 7]

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On May 16, 2017, Plaintiff filed an “Ex Parte Motion for Assignment of Counsel” that was

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accepted by the Court on discrepancy on May 22, 2017. ECF Nos. 6 and 7. Plaintiff requests

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that the Court appoint counsel to assist Plaintiff in litigating this matter. Id. at 1. In support,

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Plaintiff states that he needs the Court to appoint counsel because he (1) cannot afford to hire

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his own counsel, (2) has limited access to the law library, (3) is a layman with respect to the

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law, (4) is unable to understand the Federal Rules of Civil Procedure, (5) has very limited

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education, (6) has relied on the assistance of other inmates for all of the pleadings he has filed,

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and (7) “sincerely desires to pursue” this matter. Id. at 2-3; see also Exh. A.

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argues that the issues involved are complex and will require “serious and complex discovery

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proceedings.”

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unnecessary delays and expense to the judiciary. Id. at 6. Finally, Plaintiff declares that he is

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in the prisoners with Developmental Disabilities Program, cannot read very well, and in the

Id. at 3.

Plaintiff further

Plaintiff notes that the appointment of counsel will help reduce

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17CV560-BAS (BLM)

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Enhanced Out-Patient program where he is being treated for a mental illness. Id. at 8; see also

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Exhs. B-D.

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

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indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep’t of Soc.

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Servs., 452 U.S. 18, 25 (1981). However, under 28 U.S.C. § 1915(e)(1), courts are granted

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discretion to appoint counsel for indigent persons under “exceptional circumstances.” Agyeman

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v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004).

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circumstances demands 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 complexity

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of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986)).

A finding of exceptional

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Thus far, Plaintiff has drafted and submitted pleadings and motions without the assistance

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of counsel. See Docket. In addition to the instant motion, he has submitted a complaint (ECF

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No. 1) and a motion to proceed in forma pauperis (ECF No. 3). From the Court’s review of these

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documents, it is clear that Plaintiff is able to articulate the claims of his case.1 Plaintiff’s current

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request does not provide any facts justifying such an extraordinary remedy. ECF No. 7. Further,

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Plaintiff does not demonstrate a likelihood of success on the merits such that his case should be

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classified as an “exceptional circumstance[].” Agyeman, 390 F.3d at 1103; see also Wilborn,

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789 F.2d at 1331. While as Plaintiff argues, it is likely true that that the appointment of counsel

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would assist him with discovery and trial issues such as the examination of witnesses, these

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factors do not warrant the finding of exceptional circumstances supporting an appointment of

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Plaintiff's reliance on another inmate for assistance in drafting his pleadings [see ECF No. 7 at
3 and Exh. A] does not alter this analysis. See, e.g., Montano v. Solomon, 2010 WL 4137476,
at *7 (E.D. Cal. Oct.19, 2010) (denying plaintiff's motion for appointment of counsel where
“plaintiff has adequately presented, albeit through another inmate, the salient factual allegations
of this case ....”).

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counsel. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.1997), overruled on other grounds,

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154 F.3d 952 (9th Cir.1998) (en banc) (holding that the appellant “may well have fared better

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[with appointed counsel]—particularly in the realms of discovery and the securing of expert

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testimony—but this is not the test”); see also Peterson v. Anderson, 2009 WL 4506542, at *3

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(D. Mont. Dec.2, 2009) (citing Wilborn, 789 F.2d at 1331) (“Although Plaintiff contends he is not

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in a position to litigate this matter, pro se litigants are rarely in a position to research and

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investigate facts easily. This alone does not deem a case complex.”). “[A]ny pro se litigant

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certainly would be better served with the assistance of counsel.” Rand, 113 F.3d at 1525; see

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also Wilborn, 789 F.2d at 1331 (“[A] pro se litigant will seldom be in a position to investigate

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easily the facts necessary to support the case.”). But a plaintiff is only entitled to appointed

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counsel if he can show “that because of the complexity of the claims he [is] unable to articulate

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his positions.” Rand, 113 F.3d at 1525; see also Wilborn, 789 F.2d at 1331 (“If all that was

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required to establish successfully the complexity of the relevant issues was a demonstration of

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the need for development of further facts, practically all cases would involve complex legal

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issues.”). Plaintiff has not established that this case is “exceptional” or that the issues in it are

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particularly complex.

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Because Plaintiff has not alleged the requisite “exceptional circumstances” at this time,

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the Court DENIES without prejudice Plaintiff’s request for appointment of counsel. See Taa v.

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Chase Home Fin., 2012 WL 507430, at *2 (N.D. Cal. Feb. 15, 2012) (noting that plaintiffs' lack

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of legal training, limited English, and poverty do not constitute exceptional circumstances, as

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these are the types of difficulties many other litigants face in proceeding in pro se).

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IT IS SO ORDERED.

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Dated: 5/23/2017

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