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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1 2 3 4 :l5t' 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADAM MICHAEL STARKEY, 12 Plaintiff, 13 v. 14 EDWARD HERNANDEZ, et al., 15 Case No.: 3:17-cv-01158-JLS-KSC ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 12] Defendants. 16 17 18 Plaintiff Adam M. Starkey, a state prisoner proceeding pro se and in forma 19 pauperis, filed this action pursuant to 42 U.S.C. § 1983. Before this Court is Plaintiff's 20 Motion for Appointment of Counsel. [Doc. No. 12]. Plaintiff asks the Court to appoint 21 counsel for him because, inter alia, he "is unable to afford counsel[, ... ] has limited access 22 to the prison's law library and limited knowledge of the law." [Id., at pp. 1-2.] Plaintiff 23 further contends that his "imprisonment will greatly limit his ability to litigate [because] 24 the issues involved in this case are complex and will require significant research and 25 investigation." [Id.] Lastly, Plaintiff asserts that "a trial in this case [would] likely involve 26 conflicting testimony and counsel would better enable [him] to present evidence and cross 27 examine witnesses." [Id.] For the reasons set forth below, Plaintiff's Motion for 28 Appointment of Counsel is DENIED. 3: 17-cv-O 1158-JLS-KSC 1 DISCUSSION 2 "There is no absolute right to counsel in civil proceedings." Hedges v. Resolution 3 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). District Courts have discretion, however, 4 pursuant to 28 U.S.C § 1915(c)(l) to "request" that an attorney represent indigent civil 5 litigants upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 6 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). 7 "A finding of exceptional circumstances requires an evaluation of both the 'likelihood of 8 success on the merits and the ability of the plaintiff to articulate his claims pro se in light 9 of the complexity of the legal issues involved.' Neither of these issues is dispositive and 10 both must be viewed together before making a decision." Terrell, 935 F.2d at 1017 11 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 12 Here, there is nothing to support a finding of exceptional circumstances. First, 13 plaintiff has not addressed the likelihood of success on the merits. Nor is a likelihood of 14 success evident from the face of the Complaint. [Doc. No. 1]. 15 Second, in support of his Motion, plaintiff contends that he has limited access to the 16 prison law library. [Doc. No. 12, at p. 2]. While plaitniff asserts that the constraint on his 17 access to research material limits his ability to adequately present the issues raised in his 18 Complaint, the hardships he presents are no different than those encountered by all 19 incarcerated litigants, and importantly do not qualify as exceptional circumstances. 20 Third, plaintiff asserts that his case is complex and that "a trial in this case would 21 most likely involve conflicting testimony. . ." [Id.]. The allegations contained in the 22 Complaint are not complex. Plaintiff alleges that defendant violated his Due Process right 23 against cruel and unusual punishment under the Eigth and Fourteenth Amendment [Doc. 24 No. 1, at p. 5]. The hardships associated with litigating plaintiff's case are shared by all 25 incarcerated litigants lacking legal expertise. Regardless, there is nothing from which this 26 Court could conclude plaintiff lacks the ability to articulate and litigate his claims. He has 27 filed several documents with the Court that are organized, presenting his arguments with 28 reasonable efficiency and clarity. [See, e.g., Doc. No. 1, Complaint]. 2 3: 17-cv-01158-JLS-KSC 1 Finally, litigants proceeding pro se are generally afforded some leniency to 2 compensate for their lack of legal training. Indeed, "[i]n civil rights cases where the 3 plaintiff appears pro se, the court must construe the pleadings liberally and must afford 4 plaintiff the benefit of any doubt." Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) 5 (internal citation omitted). This also applies to motions. Bernhardt v Los Angeles County, 6 339 F.3d 920, 925 (9th Cir. 2003). 7 8 9 10 Consequently, Plaintiffs Motion for Appointment of Counsel [Doc. No. 12] is DENIED without prejudice. IT IS SO ORDERED. Dated: November ~2017 11 12 Hon. Kar n S. Crawford United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:17-cv-01158-JLS-KSC

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