Banda-Alicea v. Corrections Corporation of America et al

Filing 8

ORDER Denying with leave to renew 7 Motion to Appoint Counsel. Motions due by 2/13/2015. Signed by Magistrate Judge Cam Ferenbach on 1/22/2015. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARIO BANDA-ALICEA,
Plaintiff,
vs.
CORRECTIONS CORPORATION OF
AMERICA, et al.,

2:14-cv-01437-GMN-VCF
ORDER

Defendants.

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This matter involves incarcerated pro se Plaintiff Mario Banda-Alicea’s civil rights action
against Corrections Corporation of America, Charlotte Collins, M. Sedgwik, S. Connors, and Jim
Chism. Before this court is Plaintiff’s Motion for Appointment of Counsel. (#7). For the reasons stated

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below, Plaintiff Banda-Alicea’s Motion is denied with leave to renew.
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BACKGROUND
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Plaintiff filed a Complaint against multiple defendants and Motion for Leave to Proceed in forma
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pauperis for events that took place while he was incarcerated at the Nevada Southern Detention Center
(“NSDC”). (#1). Plaintiff alleged two counts and sought declaratory relief, injunctive relief, and

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monetary damages. (#1). In its Screening Order (#3), the court dismissed Plaintiff’s Due Process Claim

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based on the NSDC’s and U.S. Marshal’s Service policy that limits certain high risk detainees from

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participating in the volunteer work program, because the policy serves a legitimate purpose by ensuring

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the security of the facility. The court allowed Plaintiff’s Equal Protection Clause claim regarding how

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the NSDC applies the policy to pretrial detainees to proceed. (#3). The court found that based on the

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Plaintiff’s allegations, the NSDC allows pretrial detainees with detainers for pending charges with other

agencies to work even though the U.S. Marshal’s policy forbids that. (#3).This policy would create a
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situation where similarly situated detainees face disparate treatment without a rational basis for the
distinction. (#3).

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Following the Order, Plaintiff filed a Motion for Appointment of Counsel. (#7). The Motion

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states that the Plaintiff is unable to afford counsel, has tried to secure his own counsel and failed, has

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limited law experience, and has a case containing complex issues. Attached to the Motion is a

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Declaration in Support that covers the same basic assertions. There is also a Memorandum of Law

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attached to the Motion. Unfortunately, it appears to be cut off after the first page, because it ends mid-

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sentence. The Motion, Declaration, and Memorandum add nothing to the facts of the case. The
Memorandum begins to cite to a legal standard for appointing counsel for an indigent litigant, but the

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Memorandum ends before the citation is given. The persuasive or mandatory authority of this statement
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is unclear, and brief research into the matter does not show an instance where a 9th Circuit or Nevada
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District Court has used the legal standard quoted.
LEGAL STADARD

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There is no constitutional right to appointed counsel in a federal civil rights action. See, e.g.,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), op. reinstated in pertinent part, 154 F.3d 952,

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954 n. 1 (9th Cir. 1998) (en banc). Under 28 U.S.C. § 1915(e)(1), the district court may request that an

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attorney represent an indigent civil litigant. See, e.g., Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir.1986); 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to

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afford counsel.”).
While the decision to request counsel is a matter that lies within the discretion of the district

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court, the court may exercise this discretion to request or “appoint” counsel only under “exceptional
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circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991). “A finding of exceptional
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circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the
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petitioner to articulate his claims pro se in light of the complexity of the issues involved. Neither of
these factors is dispositive and both must be viewed together before reaching a decision.” Id.

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DISCUSSION

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In its current form, Banda-Alicea’s Motion fails to satisfy this high standard. While his claim for
violations of the Equal Protection Clause survived the screening process, the standard is much lower in
that proceeding. The purpose of screening is to dismiss frivolous and malicious claims or claims that fail
to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1),(2). In reviewing a motion
to appoint counsel in this matter, the court must evaluate the likelihood of success of the Plaintiff’s
claims. Terrell, 935 F.2d at 101. It is Plaintiff’s burden to demonstrate the likelihood of success. Rand,
113 F.3d at 1525. Plaintiff’s Motion for Appointment of Counsel made no arguments regarding the
likelihood of his success. (#7). While the memorandum could have discussed this issue, the version
submitted to the court is incomplete 1. This has prevented the court from evaluating the merits of
Plaintiff’s requests. Therefore, Plaintiff is granted leave to renew his Motion with the complete
Memorandum attachment. The court will evaluate Plaintiff’s request for the appointment of counsel at
that time.

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ACCORDINGLY, and for good cause shown,

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IT IS ORDERED that Banda-Alicea’s Motion for Appointment of Counsel (#7) is DENIED with
leave to renew.
…
…
…

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A copy of the Motion to Appoint Counsel (#7) as it appears on the court docket is attached to this Order as
Exhibit A.

IT IS FURTHER ORDERED that Plaintiff’s renewed Motion must be filed by February 13,

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2015.
IT IS SO ORDERED.
DATED this 22nd day of January, 2015.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

EXHIBIT A