Carter v. United States of America et al

Filing 16

ORDER denying 15 Motion for Appointment of Counsel without prejudice. Signed by Magistrate Judge Andrew G. Schopler on 7/15/2021. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
Terrence M. CARTER,

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Case No.: 20-cv-0525-JAH-AGS
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF 15) WITHOUT PREJUDICE

Plaintiff,

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v.

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UNITED STATES OF AMERICA,

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Defendant.

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Plaintiff Terrence Carter seeks appointment of counsel based on his serious medical

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conditions. He suffers from cardiovascular problems and claims that he “is at a[n]

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extremely high risk of se[]vere illness or death if he comes in contact with Covid 19.”

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(ECF 15, at 1.) Also, he maintains that he is “not a well trained attorney or educated with

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the procedures of law whatsoever,” and so “prays for appointment of counsel . . . .” (Id.)

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“Generally, a person has no right to counsel in civil actions,” Palmer v. Valdez,

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560 F.3d 965, 970 (9th Cir. 2009), and even under the statutory authority to recruit counsel

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in civil cases―28 U.S.C. § 1915(e)(1)―the Court cannot force counsel to represent an

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indigent civil litigant. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296,

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310 (1989) (holding that § 1915 “does not authorize the federal courts to make coercive

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appointments of counsel”). But “a court may under ‘exceptional circumstances’ appoint

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counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer, 560 F.3d

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at 970 (citation omitted). “When determining whether exceptional circumstances exist, a

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court must consider the likelihood of success on the merits as well as the ability of the

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

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involved.” Id. (citation and quotation marks omitted).

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Carter has not shown exceptional circumstances. The likelihood of success on the

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merits is unclear at present. The complaint was authorized for service, but it doesn’t appear

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from the record that it has been served yet, so no answer has been filed. (See ECF 7.)

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Moreover, Carter’s excessive-force claim is, like most such claims, not particularly
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20-cv-0525-JAH-AGS

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complex. See Price v. Kamer, 993 F. Supp. 1295, 1298 (C.D. Cal. 1997) (“With rare

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exceptions, excessive force cases are simple, rather than complex cases. Excessive force

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cases almost always involve very few events which happened over a very short time span.

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There tend to be relatively few witnesses, and the dispositive disputes almost always

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involve the credibility of witnesses.” (emphasis omitted)). Indeed, although the Court does

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not discredit or seek to minimize the difficulty Carter is suffering from his surgery, nothing

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in the one page of attached records suggest his condition is so severe as to prevent him

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from representing himself. Indeed, the record suggests the doctor is “very pleased with

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[Carter’s] progress” in recovery. (ECF 15, at 2.)

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Although the Court denies the current request for recruited counsel, it does so

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without prejudice. Should matters change, Carter is welcome to seek counsel again at that

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time.

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Dated: July 15, 2021

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