Starkey v. Hernandez et al

Filing 13

ORDER Denying 12 Motion for Appointment of Counsel. Signed by Magistrate Judge Karen S. Crawford on 11/29/2017. (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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ADAM MICHAEL STARKEY,

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Plaintiff,

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v.

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EDWARD HERNANDEZ, et al.,

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Case No.: 3:17-cv-01158-JLS-KSC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
[Doc. No. 12]

Defendants.

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Plaintiff Adam M. Starkey, a state prisoner proceeding pro se and in forma

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Motion for Appointment of Counsel. [Doc. No. 12]. Plaintiff asks the Court to appoint

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counsel for him because, inter alia, he "is unable to afford counsel[, ... ] has limited access

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to the prison's law library and limited knowledge of the law." [Id., at pp. 1-2.] Plaintiff

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further contends that his "imprisonment will greatly limit his ability to litigate [because]

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the issues involved in this case are complex and will require significant research and

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investigation." [Id.] Lastly, Plaintiff asserts that "a trial in this case [would] likely involve

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conflicting testimony and counsel would better enable [him] to present evidence and cross

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examine witnesses." [Id.] For the reasons set forth below, Plaintiff's Motion for

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Appointment of Counsel is DENIED.

3: 17-cv-O 1158-JLS-KSC

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DISCUSSION

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"There is no absolute right to counsel in civil proceedings." Hedges v. Resolution

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Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). District Courts have discretion, however,

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pursuant to 28 U.S.C § 1915(c)(l) to "request" that an attorney represent indigent civil

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litigants upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989).

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"A finding of exceptional circumstances requires an evaluation of both the 'likelihood of

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success on the merits and the ability of the plaintiff to articulate his claims pro se in light

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of the complexity of the legal issues involved.' Neither of these issues is dispositive and

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both must be viewed together before making a decision."

Terrell, 935 F.2d at 1017

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(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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Here, there is nothing to support a finding of exceptional circumstances. First,

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plaintiff has not addressed the likelihood of success on the merits. Nor is a likelihood of

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success evident from the face of the Complaint. [Doc. No. 1].

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Second, in support of his Motion, plaintiff contends that he has limited access to the

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prison law library. [Doc. No. 12, at p. 2]. While plaitniff asserts that the constraint on his

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access to research material limits his ability to adequately present the issues raised in his

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Complaint, the hardships he presents are no different than those encountered by all

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incarcerated litigants, and importantly do not qualify as exceptional circumstances.

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Third, plaintiff asserts that his case is complex and that "a trial in this case would

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most likely involve conflicting testimony. . ." [Id.]. The allegations contained in the

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Complaint are not complex. Plaintiff alleges that defendant violated his Due Process right

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against cruel and unusual punishment under the Eigth and Fourteenth Amendment [Doc.

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No. 1, at p. 5]. The hardships associated with litigating plaintiff's case are shared by all

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incarcerated litigants lacking legal expertise. Regardless, there is nothing from which this

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Court could conclude plaintiff lacks the ability to articulate and litigate his claims. He has

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filed several documents with the Court that are organized, presenting his arguments with

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reasonable efficiency and clarity. [See, e.g., Doc. No. 1, Complaint].
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3: 17-cv-01158-JLS-KSC

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Finally, litigants proceeding pro se are generally afforded some leniency to

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compensate for their lack of legal training. Indeed, "[i]n civil rights cases where the

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plaintiff appears pro se, the court must construe the pleadings liberally and must afford

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plaintiff the benefit of any doubt." Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003)

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(internal citation omitted). This also applies to motions. Bernhardt v Los Angeles County,

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339 F.3d 920, 925 (9th Cir. 2003).

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Consequently, Plaintiffs Motion for Appointment of Counsel [Doc. No. 12] is

DENIED without prejudice.
IT IS SO ORDERED.
Dated: November ~2017

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Hon. Kar n S. Crawford
United States Magistrate Judge

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3:17-cv-01158-JLS-KSC