United States District Court, D. Nevada
CHRISTOPHER A. JONES, Plaintiff,
DWIGHT NEVEN, et al., Defendants.
ORDER RE: ECF NO. 360
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
the court is Plaintiff's Motion for Appointment of
Counsel (ECF No. 360). The argument Plaintiff asserts for
appointment of counsel is that “this matter involves
complex and technical medical issues concerning
ibuprofen-induced hepatotoxicity in patients with chronic
hepatitis C along with corresponding scientific data relating
thereto. The issue also involves procuring an expert to
testify in regards to such matters as, the Plaintiff, as a
layman, is not qualified to testify to such matters to
properly introduce all of the medically related
Plaintiff himself acknowledges (id. at 2), a
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).
also recognizes that a 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. (ECF No. 360 at 2-3.) 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.
The decision of whether to appoint counsel, as Plaintiff also
notes, lies with the discretion of the District Court. (ECF
No. 360 at 3.)
as reflected in multiple filings in this case and several
others, has indisputably shown an ability to articulate his
claims. The court notes Plaintiff's involvement in the
following civil rights lawsuits: Jones v. Bryant, et
al., 2:12-cv-01578-JAD-NJK; Jones v. Cox, et al.,
2:12-cv-02177-GMN-GWF; Jones v. Lopez, et
al., 3:98-cv-00316-ECR-RAM; Jones v. Spring Central
Telephone, et al., 3:99-cv-00127-ECR-RAM;
3:00-cv-00509-ECR-VPC; Jones v. Vandenberg, et
al., 3:01-cv-00220-LRH-VPC; Jones v. McDaniel,
et al., 3:03-cv-00032-ECR-RAM; Jones v. Book, et
al., 3:03-cv-00276-HDM-VPC; Jones v.
Jensen, et al., 3:04-cv-00426-LRH-VPC; Jones v.
Drain, et al., 3:05-cv-00278-RAM; Jones v.
McDaniel, et al., 3:08-cv-00537-LRH-VPC; and, Jones
v. Skolnik, et al., 3:10-cv-00162-LRH-VPC.
regard to 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.
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. After some
eleven years of litigation, Plaintiff Jones' case has
been narrowed down to a single claim for deliberate
indifference against Dr. MacArthur. The case as it now stands
is not unduly complicated, despite Plaintiff's
characterization that it involves “complex and
technical medical issues.” The issue as phrased by the
Ninth Circuit - and upon which appeal pro se
Plaintiff Jones prevailed - was “whether Defendants
were deliberately indifferent to his Hepatitis C
diagnosis.” (ECF No. 312 at 2.)
with respect to the Terrell factors, Plaintiff has
failed to convince the court of the likelihood of success on
the merits of his claim. Plaintiff asks the court “to
take judicial notice and seriously consider the
pronouncements and findings in the Ninth Circuit's
Memorandum dated Feb.1, 2017 at pp. 2-3 citing in part: A
reasonable jury could find that Defendants' disregard for
Jones' Hepatitis C, and the contraindicated ibuprofen
prescriptions caused Jones ‘the unnecessary and wanton
infliction of pain.'” (ECF No. 360 at 3.) Plaintiff
also states that the evidentiary record and the Ninth
Circuit's language above suggests “a strong
likelihood in success upon the merits exists.”
court disagrees with Plaintiff's characterization of the
decision of the Court of Appeals. All the Ninth Circuit
concluded was that summary judgment was inappropriate because
a “reasonable jury could find that Defendants'
disregard for Jones' Hepatitis C, and the contraindicated
ibuprofen prescriptions caused Jones ‘the unnecessary
and wanton infliction of pain.'” (citing
Colwell v. Bannister, 763 F.3d 1060, 1066) (ECF No.
312 at 3.)
any pro se inmate such as Mr. Jones 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 ...