United States District Court, D. Nevada
ORDER RE: ECF NOS. 44, 45
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
the court is Plaintiff's Motion for Counsel and Motion
for Judicial Notice of Exhibits in Support of Motion for
Counsel (ECF No. 44). Plaintiff states in his motion that he
“has been (and continues to be) subjected to severe
disciplinary actions, retaliatory transfers, harmful records
by the defendants, their agents, and successors, and other
action in concert with them adversely impacting his
conditions of incarceration (programs, ability to process
grievances free of retribution, access the courts free of
retribution) as shown in the sworn/verified complaint.”
(Id. at 1.) Plaintiff further states that “as
a prisoner, I do not have adequate access to phones, mails,
confidential contact with inmate witnesses or NDOC staff to
conduct federal discovery for summary judgment, opposition or
trial.” (Id. at 4.)
litigant in a civil rights action does 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.
The circumstances in which a court will grant such a request,
however, are exceedingly rare, and the court will grant the
request under only extraordinary circumstances. United
States v. 30.64 Acres of Land, 795 F.2d 796, 799-800
(9th Cir. 1986); Wilborn v. Escalderon, 789 F.2d
1328, 1331 (9th Cir. 1986).
finding of such exceptional or extraordinary circumstances
requires that the court evaluate both the likelihood of
Plaintiff's success on the merits and the pro se
litigant's ability to articulate his claims in light of
the complexity of the legal issues involved. Neither factor
is controlling; both must be viewed together in making the
finding. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
Cir. 1991), citing Wilborn, supra, 789 F.2d at 1331.
Plaintiff's motion discusses neither of these factors.
as reflected in his prior filings, has indeed shown an
ability to articulate his claims. (ECF Nos. 6, 7, 12, 14, 15,
17, 29.); his current motions also demonstrate that ability.
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.
Ninth Circuit therefore affirmed the District Court's
exercise of discretion in denying the request for appointment
of counsel because the Plaintiff failed to establish the case
was complex as to facts or law. 789 F.2d at 1331.
substantive claim involved in this action is not unduly
complex. Plaintiff's First Amended Complaint was found to
state a claim of retaliation against Defendants Moseley, V.
Olivas, R. Olivas, and Byrne. (ECF No. 19 at 7.) Attaching
some 340 pages of exhibits to his combined motion for
appointment of counsel/motion for judicial notice (ECF Nos.
44, 45) does not make his case unduly complex. Additionally,
most of the grounds Plaintiff asserts are beyond the purview
of this case. See, Screening Order, ECF No.
with respect to the Terrell factors, Plaintiff has
failed to convince the court of the likelihood of success on
the merits of his claims. In fact, Plaintiff's motion
(ECF No. 44) contains no discussion of why Plaintiff
believes he will prevail in this action. That flaw alone is
fatal to Plaintiff's request for this court to exercise
its discretion to appoint counsel.
discussed above, Plaintiff states that as a pro se
inmate, he is hampered by his inability to investigate the
claims and defenses, pursue depositions, interview witnesses,
etc. The case Plaintiff cites regarding appointment of
counsel, Koerschner v. Warden, 508 F.Supp.2d 849 (D.
Nev. 2007) was a habeas case, not a civil rights action under
42 U.S.C. § 1985. Appointment of counsel in a habeas
corpus action is governed by 18 U.S.C. § 3006A(a)(2)(B).
Appointment of counsel in a § 1983 action is governed by
28 U.S.C. § 1915(e)(1). The standards pertaining to a
court's exercise of its discretion to appoint counsel are
constrained by the Wilborn and Terrell
criteria, which as the court noted above neither of which was
satisfied by Plaintiff.
any pro se inmate such as Mr. Friedman would likely
benefit from services of counsel, that is not the standard
this court must employ in determining whether counsel should
be appointed. Wood v. Housewright, 900 F.2d 1332,
1335-1336 (9th Cir. 1990).
United States Supreme Court has generally stated that
although Congress provided relief for violation of one's
civil rights under 42 U.S.C. § 1983, the right to access
to the courts is only a right to bring complaints to federal
court and not a right to discover such claims or to litigate
them effectively once filed with a court. Lewis v.
Casey, 518 U.S. 343, 354-355 (1996).
court does not have the power “to make coercive
appointments of counsel." Mallard v. U.S. Dist.
Ct,490 U.S. 296, 310 (1989). Thus, the Court can
appoint counsel only under exceptional circumstances.
Palmer v. Valdez,560 F.3d 965, 970 (9th Cir. 2009)
[cert den 130 ...