Holmes v. Baca et al

Filing 55

ORDER denying ECF No. 54 Motion for Appointment of Counsel. Signed by Magistrate Judge William G. Cobb on 10/6/2020. (Copies have been distributed pursuant to the NEF - LW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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7 KEVIN RAY HOLMES,
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Plaintiff,

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Case No.: 3:17-cv-00320-RCJ-WGC
ORDER
Re: ECF No. 54

10 ISIDRO BACA, et al.,
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Defendants.

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Before the court is Plaintiff’s Motion for Appointment of Counsel (ECF No. 54). 1 Plaintiff

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14 bases his motion on (1) the fact that he has been granted in forma pauperis status and is unable to
15 afford counsel, (2) that the substantive issues and procedural matters in this case are too complex
16 for Plaintiff’s comprehension and abilities, and (3) that Plaintiff’s incarceration will greatly limit
17 his ability to effectively litigate his case.
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Plaintiff further states he “cannot articulate his claims in light of the restrictions due to the

19 Covid-19 pandemic” and “does not possess the ability to locate witnesses, some former inmates
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This is actually Plaintiff’s second request for appointment of counsel. See, ECF No. 32, denied on
11/20/19 in ECF No. 35.
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1 and other staff members at the N.D.O.C., nor can he collect evidence while confined to prison.”
2 (Id. at 7.)
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As discussed in this court’s prior order denying Plaintiff’s motion for appointment of

4 counsel (ECF No. 35), a litigant in a civil rights action does not have a Sixth Amendment right to
5 appointed counsel. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The United States
6 Supreme Court has generally stated that although Congress provided relief for violation of one’s
7 civil rights under 42 U.S.C. § 1983, the right to access to the courts is only a right to bring
8 complaints to federal court and not a right to discover such claims or even to litigate them
9 effectively once filed with a court. Lewis v. Casey, 518 U.S. 343, 354-355 (1996).
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While any pro se inmate such as Mr. Holmes would likely benefit from services of counsel,

11 that is not the standard this court must employ in determining whether counsel should be appointed.
12 Wood v. Housewright, 900 F.2d 1332, 1335-1336 (9th Cir. 1990).
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In very limited circumstances, federal courts are empowered to request an attorney to

14 represent an indigent civil litigant. The circumstances in which a court will grant such a request,
15 however, are exceedingly rare, and the court will grant the request under only extraordinary
16 circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 1986);
17 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
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A finding of such exceptional or extraordinary circumstances requires that the court

19 evaluate both the likelihood of Plaintiff’s success on the merits and the pro se litigant's ability to
20 articulate his claims in light of the complexity of the legal issues involved. Neither factor is
21 controlling; both must be viewed together in making the finding. Terrell v. Brewer, 935 F.2d 1015,
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1 1017 (9th Cir. 1991), citing Wilborn, supra, 789 F.2d at 1331. Plaintiff has shown an ability to
2 articulate his claims. (ECF Nos. 1, 6, 8, 10, 30, 32, 33, 42, 48.)
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In the matter of a case's complexity, the Ninth Circuit in Wilborn noted that:
If all that was required to establish successfully the
complexity of the relevant issues was a demonstration of
the need for development of further facts, practically all
cases would involve complex legal issues. Thus,
although Wilborn may have found it difficult to
articulate his claims pro se, he has neither demonstrated
a likelihood of success on the merits nor shown that the
complexity of the issues involved was sufficient to
require designation of counsel.
The Ninth Circuit therefore affirmed the District Court's exercise of discretion in denying

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the request for appointment of counsel because the Plaintiff failed to establish the case was
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complex as to facts or law. 789 F.2d at 1331.
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Despite Plaintiff’s characterization of this action as being complicated, the substantive
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claim left in this action is not unduly complex. U. S. District Judge Robert C. Jones denied
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summary judgment as to equal protection claim against Defendant Skulstad. (ECF No. 53 at 3.)
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Similarly, with respect to the Terrell factors, Plaintiff has failed to convince the court of
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the likelihood of success on the merits of his claims.
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The United States Supreme Court has generally stated that although Congress provided
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relief for violation of one’s civil rights under 42 U.S.C. § 1983, the right to access to the courts is
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only a right to bring complaints to federal court and not a right to discover such claims or to litigate
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them effectively once filed with a court. Lewis v. Casey, 518 U.S. 343, 354-355 (1996).
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The court does not have the power “to make coercive appointments of counsel." Mallard v.
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U. S. Dist. Ct., 490 US 296, 310 (1989). Thus, the court can appoint counsel only under exceptional
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circumstances. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) [cert den 130 S.Ct. 1282
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1 (2010)]. Plaintiff has not shown that the exceptional circumstances necessary for appointment of
2 counsel are present in this case.
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In the exercise of the court's discretion, it DENIES Plaintiff’s Motion for Appointment of

4 Counsel (ECF No. 54).
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IT IS SO ORDERED.

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Dated: October 6, 2020.

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_________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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