Williams v. Marks et al

Filing 29

ORDER that DENIES Plaintiff's Ex Parte Motion for Appointment of Counsel (ECF No. 27 ). Signed by Magistrate Judge William G. Cobb on 3/14/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MICHAEL WILLIAMS,

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Plaintiff,
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vs.
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MARKS, et al.,
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Defendants.
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______________________________________)

3:17-cv-00355-MMD-WGC
ORDER
Re: ECF No. 27

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Before the court is Plaintiff’s Ex Parte Motion for Appointment of Counsel (ECF No. 27).

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Plaintiff states he “is physically impaired. Plaintiff suffers from a sever (sic) back pain that restricts

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Plaintiff from sitting, bending forward and wrilling (sic) for any length of time, which si the crux of

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Plaintiff’s current litigation.” (Id. at 2.) Plaintiff further contends he has “recently been prescribed

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medication for the pain that causes mental fogginess and drowziness (sic) without any form of

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concentration.” (Id.)

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A litigant in a civil rights action does not have a Sixth Amendment right to appointed counsel.

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Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In very limited circumstances, federal courts

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are empowered to request an attorney to represent an indigent civil litigant. The circumstances in which

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a court will grant such a request, however, are exceedingly rare, and the court will grant the request

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under only extraordinary circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800

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(9th Cir. 1986); 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 evaluate both

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the likelihood of Plaintiff’s success on the merits and the pro se litigant's ability to articulate his claims

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in light of the complexity of the legal issues involved. Neither factor is controlling; both must be viewed

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together in making the finding. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), citing Wilborn,

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supra, 789 F.2d at 1331. Plaintiff has shown an ability to articulate his claims. (ECF Nos. 1, 4, 27, 28.)

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He has not adequately addressed the factor whether he will likely succeed in the prosecution of his civil

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rights action.

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In the matter of a case's complexity, the Ninth Circuit in Wilborn noted that:

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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 the

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request for appointment of counsel because the Plaintiff failed to establish the case was complex as to

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facts or law. 789 F.2d at 1331.

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The substantive claims involved in this action are not unduly complex. Plaintiff’s Complaint was

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allowed to proceed alleging an Eighth Amendment claim for deliberate indifference to a serious medical

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need against Defendants Baca, Marks, Melissa and Ward and a Fourteenth Amendment claim for

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interference with access to the grievance process against Defendant Ward. (ECF No. 3 at 9.) These

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claims are not so complex that counsel needs to be appointed to prosecute them.
Similarly, with respect to the Terrell factors, Plaintiff has again failed to convince the court of

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the likelihood of success on the merits of his claims.

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While any pro se inmate such as Mr. Williams would likely benefit from services of counsel, that

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is not the standard this court must employ in determining whether counsel should be appointed.

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Wood v. Housewright, 900 F.2d 1332, 1335-1336 (9th Cir. 1990).

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The United States Supreme Court has generally stated that although Congress provided relief for

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violation of one’s civil rights under 42 U.S.C. § 1983, the right to access to the courts is only a right to

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bring complaints to federal court and not a right to discover such claims or even to litigate them

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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. U. S.

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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 (2010)].

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Plaintiff has not shown that the exceptional circumstances necessary for appointment of counsel are

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present in this case.

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In the exercise of the court's discretion, it DENIES Plaintiff’s Ex Parte Motion for Appointment
of Counsel (ECF No. 27).

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The parties should be aware of the following:

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That they may file, pursuant to 28 U.S.C. §636(b)(1)(A) and Rule IB 3-1 of the Local

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Rules of Practice, specific written objections to the court’s order within fourteen (14)

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days after service of the order. These objections should be titled “Objections to

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Magistrate Judge’s Order” and should be accompanied by points and authorities for

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consideration by the District Court.

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2.

That this Order is not an appealable order and that any notice of appeal pursuant to Rule
4(a)(1), Fed. R. App. P., should not be filed until entry of the District Court’s judgment.

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IT IS SO ORDERED.

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DATED: March 14, 2019.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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