Garrison v. NDOC Director, et al

Filing 211

ORDER denying 208 Plaintiff's Motion for Appointment of Counsel. Signed by Magistrate Judge William G. Cobb on 10/27/2020. (Copies have been distributed pursuant to the NEF - HJ)

Case 3:17-cv-00391-MMD-WGC Document 211 Filed 10/27/20 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

6 ARTHUR LEE GARRISON,
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Plaintiff,

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Case No.: 3:17-cv-00391-MMD-WGC
Order
Re: ECF No. 208

9 NEVADA DEPARTMENT OF
CORRECTIONS, et al.,
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Defendants.
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Before the court is Plaintiff’s “Motion for Serious Need of Appointment of Counsel”
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(ECF No. 208). 1 Plaintiff states in his ninth motion for appointment of counsel that “Plaintiff is
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57 year old male who suffers from serious disabilities in several areas. (1) writing, (2) spelling,
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(3) a form of dyslexia, (4) could be autism, (5) and is diabetic, has trouble reading and
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remembering, (6) cannot keep document in proper organization.” (Id. at 1.) Despite Plaintiff’s
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contentions of disabilities with writing, what he styles as “a form of dyslexia” and what “could be
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autism,” he has been able to litigate eight (8) prior motions for appointment of counsel.
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This will actually be Plaintiff’s ninth request for appointment of counsel. See, ECF No. 6, denied on

21 7/23/18 in ECF No. 18; ECF No. 20, denied on 8/7/18 in ECF No. 21; ECF No. 52, denied on 8/1/19 in
ECF No. 55; ECF No. 102, denied on 12/4/19 in ECF No. 103; ECF No. 111, denied on 1/9/20 in ECF No.
22 112, ECF No. 125, denied on 2/24/20 in ECF No. 128, ECF No. 154, denied on 7/8/20 in ECF No. 155,
and ECF No. 177, denied on 10/1/20 in ECF No. 181. Plaintiff objected to this court’s denial (ECF No.
55) of his motion (ECF No. 52) for appointment of counsel (ECF No. 67). Chief District Judge Du rejected
23 Plaintiff’s objection and sustained the order denying appointment of counsel pursued under substantially
similar grounds as Plaintiff has asserted in this motion.(ECF No. 96 at 3-4.)

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As the court has previously explained to Plaintiff, the United States Supreme Court has

2 generally stated that although Congress provided relief for violation of one’s civil rights under 42
3 U.S.C. § 1983, the right to access to the courts is only a right to bring complaints to federal court
4 and not a right to discover such claims or to litigate them effectively once filed with a court. Lewis
5 v. Casey, 518 U.S. 343, 354-355 (1996).
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And as the court has also previously explained to Mr. Garrison, while any pro se inmate

7 such as Mr. Garrison would likely benefit from services of counsel, that is not the standard this
8 court must employ in determining whether counsel should be appointed. Wood v. Housewright,
9 900 F.2d 1332, 1335-1336 (9th Cir. 1990).
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As discussed in this court’s prior orders denying Plaintiff’s motions for appointment of

11 counsel and/or guardian ad litem (ECF Nos. 18, 21, 55, 103, 112, 128, 155, 181), a litigant in a
12 civil rights action does not have a Sixth Amendment right to appointed counsel. Storseth v.
13 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In these orders, the court explained that only in
14 very limited circumstances are federal courts empowered to request an attorney to represent an
15 indigent civil litigant. The circumstances in which a court will grant such a request, however, are
16 exceedingly rare, and the court will grant the request under only extraordinary circumstances.
17 United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 1986); Wilborn v.
18 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

20 evaluate both the likelihood of Plaintiff’s success on the merits and the pro se litigant's ability to
21 articulate his claims in light of the complexity of the legal issues involved. Neither factor is
22 controlling; both must be viewed together in making the finding. Terrell v. Brewer, 935 F.2d 1015,
23 1017 (9th Cir. 1991), citing Wilborn, supra, 789 F.2d at 1331. Plaintiff has shown an ability to

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1 articulate his claims, because he has submitted at least four (4) amended pleadings, the most recent
2 of which survived screening. (ECF No. 128.) The instant motion, as stated in footnote 1, is
3 Plaintiff’s motion seeking appointment of counsel. The present motion, as did the preceding eight,
4 demonstrates an ability by Plaintiff to articulate his claims. Additionally, Plaintiff’s most recent
5 motion was approximately 150 pages in length. (ECF No. 178.)
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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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Similarly, with respect to the Terrell factors, Plaintiff has again failed to convince the court
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of the likelihood of success on the merits of his claims.
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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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(2010)]. Plaintiff has once again not shown that the exceptional circumstances necessary for
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appointment of 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
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Counsel (ECF No. 208). As Plaintiff did with the undersigned’s denial of three of his other motions
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for appointment of counsel (ECF Nos. 52, 55, 157), Plaintiff is entitled to file an objection to the
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1 court’s order herein denying appointment of counsel. Chief District Judge Miranda M. Du already
2 overruled Plaintiff’s objection to this court’s 8/1/19 order denying Plaintiff’s motion for
3 appointment of counsel. (ECF No. 96.)
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IT IS SO ORDERED.

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Dated: October 27, 2020.

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_________________________________
William G. Cobb
United States Magistrate Judge

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