United States District Court, D. Nevada
Hoffman, Jr. United States Magistrate Judge
before the Court is pro se Plaintiff Steven Braunstein's
application for leave to proceed in forma pauperis
(ECF No. 1), filed on February 8, 2017, along with his
complaint (ECF No. 1-1). Also before the court is
Plaintiff's motion for appointment of counsel (ECF No.
2), also filed on February 8, 2017. Plaintiff is presently
incarcerated at High Desert State Prison, in Indian Springs,
Plaintiff's Application to Proceed In Forma
the Court must consider an application to proceed in
forma pauperis, and then, if the applicant has
demonstrated an inability to prepay the filing fee, the Court
will grant the application and screen the complaint pursuant
to 28 U.S.C. § 1915(e)(2).
28 U.S.C. § 1915(g) requires that “if [a] prisoner
has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a
court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, ” he may not proceed
in forma pauperis and, instead, must pay the full $400.00
filing fee in advance unless he is “under imminent
danger of serious physical injury.” 28 U.S.C. §
1915(g). A Court must examine the record of previous claims
and “after reviewing the orders dismissing those
actions and other relevant information[, ]” determine
whether dismissal was due to a finding that the claims were
frivolous, malicious, or failed to state a claim. Andrews
v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). Upon such
a finding, the Court may deny permission to proceed in
forma pauperis. Id.
on at least three occasions, the Court has dismissed civil
actions commenced by Plaintiff while in detention as
frivolous or for failure to state a claim upon which any
relief may be granted. See Braunstein v. Sandoval et
al., 3:12-cv-00235-LRH-WGC; Braunstein v. Villani et
al., 3:12-cv-00665-MMD-VPC; and Braunstein v. Clark
County et al., 3:02-cv-00163-DWH-RAM (all dismissed for
failure to state a claim). In fact, the Court has already
determined that Plaintiff is barred from proceeding in
forma pauperis in civil actions while incarcerated,
based on 28 U.S.C. § 1915(g). See Braunstein v.
Feil, et al., 2:16-cv-02062-APG-GWF. The Court takes
judicial notice of its prior decisions in the above matters.
instant case is a claim brought under 42 U.S.C. § 1983
for alleged deprivation of civil rights stemming from his
conviction in a Nevada state court in January of 2000.
Plaintiff does not allege or provide any evidence to suggest
that he was in imminent danger of serious physical injury at
the time he submitted his complaint. As such, Plaintiff must
pre-pay the $400 filing fee in full before this action may
commence. See Andrews v. Cervantes, 493 F.3d 1047,
1055-56 (9th Cir. 2007) (holding that the exception to §
1915(g) applies only if the complaint makes a plausible
allegation that the prisoner faced an ongoing danger of
serious physical injury at the time of filing).
Plaintiff's Motion for Appointment of Counsel
requests appointment of counsel to assist in litigation of
his current case. However, civil litigants do not have a
Sixth Amendment right to appointed counsel. Storseth v.
Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In very
limited circumstances, federal courts are empowered to
request an attorney to represent an indigent civil litigant.
For example, courts have discretion, pursuant to 28 U.S.C.
§ 1915(e)(1), to “request” that an attorney
represent indigent civil litigants upon a showing of
“exceptional circumstances.” Ageyman v.
Corrections Corp. of America, 390 F.3d 1101, 1103 (9th
Cir. 2004). The circumstances in which a court will make such
a request, however, are exceedingly rare and require a
finding of extraordinary circumstances. United States v.
30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir.
1986). The difficulties inherent in proceeding pro se do not
qualify as exceptional circumstances. Housewright,
900 F.2d 1332, 1335-1336 (9th Cir. 1990).
determine whether the “exceptional circumstances”
necessary for appointment of counsel are present, courts
evaluate (1) the likelihood of plaintiff's success on the
merits and (2) the plaintiff's ability to articulate his
claim pro se “in light of the complexity of
the legal issues involved.” Agyeman, 390 F.3d
at 1103 (quoting Wilborn v. Escalderon, 789 F.2d
1328, 1331 (9th Cir. 1986)). Neither of these factors is
dispositive and both must be viewed together.
Wilborn, 789 F.2d at 1331.
the Court does not find any exceptional circumstances.
Plaintiff makes a civil rights complaint under 42 U.S.C.
§ 1983. However, upon review of Plaintiff's
complaint and supporting documents, Plaintiff's case is
unlikely to succeed on the merits, as it appears to be a
successive attempt to bring a claim regarding his conviction
in a Nevada state court in January, 2000 (See e.g.,
Braunstein v. Sandoval et al., 3:12-cv-00235-LRH-WGC;
Braunstein v. Villani et al.,
3:12-cv-00665-MMD-VPC). Moreover, Plaintiff's claims,
that employees of the state of Nevada violated his civil
rights by carrying out his trial and subsequent conviction,
are not inherently complex. Plaintiff has repeatedly
litigated this and other similar claims, and has been able to
articulate his argument with reasonable clarity.
se litigant “would be better served with the assistance
of counsel.” Rand v. Rowland, 113 F.3d 1520,
1525 (9th Cir. 1997) (citing Wilborn, 789 F.2d at
1331). However, when a pro se litigant is able to
“articulate his claims against the relative complexity
of the matter, ” but unable to show a likelihood of
success on the merits, the “exceptional
circumstances” which might require the appointment of
counsel do not exist. Id. The Court will therefore
deny the motion for counsel. IT IS THEREFORE ORDERED that
Plaintiffs application to proceed in forma pauperis
(ECF No. 1) is DENIED.
FURTHER ORDERED that Plaintiffs motion for appointment of
counsel (ECF No. 2) is DENIED.
FURTHER ORDERED that within thirty days from the date of this
order, Plaintiff must pay the full $400 fee for a civil
action (which includes the $350 filing fee and the $50
administrative fee). Plaintiff is advised that failure to