Toribio-Ruiz v. Baca et al

Filing 67

ORDER denying ECF No. 64 Motion for Appointment of Counsel. Signed by Chief Judge Miranda M. Du on 9/21/2020. (Copies have been distributed pursuant to the NEF - LW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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HERIBERTO TORIBIO-RUIZ,

Case No. 3:17-cv-00674-MMD-CLB

Plaintiffs,

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ORDER

v.
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ISIDRO BACA, et al.,
Defendants.

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Following screening and summary judgment proceedings pro se Plaintiff Heriberto

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Toribio-Ruiz has one claim for Eighth Amendment deliberate indifference to medical needs

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under 42 U.S.C. § 1983 remaining for trial. (ECF No. 3 at 5-7; ECF Nos. 45, 57, 58.) Before

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the Court is Plaintiff’s motion for appointment of counsel (“Motion”). (ECF No. 64.) For

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reasons explained below, the Court will deny the Motion. 1

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There is no constitutional right to appointed counsel in a § 1983 action. E.g., Rand

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

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F.3d 952, 954 n.1 (9th Cir. 1998) (en banc). The provision in 28 U.S.C. § 1915(e)(1),

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however, gives a district court the discretion to request that an attorney represent an

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indigent civil litigant. 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to

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represent any person unable to afford counsel.”); see, e.g., Wilborn v. Escalderon, 789

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F.2d 1328, 1331 (9th Cir. 1986). Yet, the statute does not give the court the authority to

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compel an attorney to accept appointment, such that counsel remains free to decline the

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request. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 310 (1989).

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Furthermore, while the decision to request counsel lies within the discretion of the district

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Court has also reviewed Defendant’s response (ECF No. 65).

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court, the court may exercise this discretion to request counsel only under “exceptional

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circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of

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exceptional circumstances requires an evaluation of both the likelihood of success on the

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merits and [the plaintiff's ability to] articulate his claims pro se in light of the complexity of

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the legal issues involved.” Id. (quoting Wilborn, 789 F.2d at 1331) (internal quotation marks

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omitted).

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Exceptional circumstances do not exist in this instance. Plaintiff has not

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demonstrated a likelihood of success on the merits as there are genuine disputes of fact

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as to whether Defendants violated Plaintiff’s Eighth Amendment rights. (ECF No. 57 at 6-

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9; ECF No. 58.) Plaintiff only makes conclusory assertions that this case is complex

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because “medical issues are complex.” (ECF No. 64 at 12.) To be sure, an appointment

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of counsel is generally appropriate in Eighth Amendment cases alleging deliberate

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indifference to serious medical needs where an incarcerated plaintiff is expected to find a

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medical expert. See Clemons v. Hill, 743 F. App'x 885, 886 (9th Cir. 2018). 2 But the issue

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in this case is deliberate indifference, which is not a complex question, nor will it require

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expert assistance to understand. (See ECF No. 3 at 5-7; ECF No. 57 at 6-9.) Moreover,

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even though Plaintiff contends that other inmates assisted him in submitting his medical

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kites, drafting his Complaint, and submitting this Motion, he has demonstrated that he can

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articulate his claims to the Court. (ECF Nos. 34, 35.) And while Plaintiff also argues that

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he does not know how to conduct a trial and has no experience preparing jury instructions,

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proposing voir dire, or drafting motions in limine (ECF No. 64 at 12), such lack of

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experience is unexceptional compared to most prisoner civil rights cases. Because

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Plaintiff has not demonstrated exceptional circumstances, the Court denies the Motion.

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///

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2The

Court finds Clemons persuasive and applies it here. Although not binding
precedent, unpublished decisions have persuasive value and may be relied on. See, e.g.,
In re Ocwen Loan Servicing LLC Litigaton, No. 3:16-cv-200-MMD-WGC, 2019 WL
690353, at *2 (D. Nev. Feb. 19, 2019); see also Ninth Cir. R. 36-3 (“Unpublished Ninth
Circuit decisions may be cited commencing with decisions issued in 2007.”).
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It is therefore ordered that Plaintiff’s motion for appointment of counsel (ECF No.
64) is denied.
DATED THIS 21st day of September 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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