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Coleman v. Erogul

United States District Court, D. Nevada

May 10, 2019

RONNIE MONEY COLEMAN, Plaintiff,
v.
JOHN EROGUL, et al., Defendants.

          ORDER RE: ECF NO. 39

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.

         Before the court is Plaintiff's Motion for Appointment of Counsel (ECF No. 39). Plaintiff bases his motion on (1) the fact that he is unable to afford counsel, and (2) that “E.S.P. currently does not allow Plaintiff the right to check out legal law books through there (sic) paging system. Such lack of privilege denies Plaintiff the legal tools to gain insight to oppose legal challenges and intel strategies.” (Id.)

         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). The 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 even to litigate them effectively once filed with a court. Lewis v. Casey, 518 U.S. 343, 354-355 (1996).

         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).

         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. 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 has shown an ability to articulate his claims. (ECF Nos. 1, 3, 26, 35.)

         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 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.

         The substantive claims involved in this action are not unduly complex. Plaintiff's Amended Complaint was allowed to proceed on Count I alleging deliberate indifference to a serious medical need against Defendants Borino, Moreda, Wolff, Erogul and Doe HDSP Medical Staff, and on Count II alleging a due process violation against Doe NNCC Administrator. (ECF No. 6 at 6, 7.) These claims are not so complex that counsel needs to be appointed to prosecute them.

         Similarly, with respect to the Terrell factors, Plaintiff has again failed to convince the court of the likelihood of success on the merits of his claims.

         While any pro se inmate such as Mr. Coleman 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).

         The 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 S.Ct. 1282 (2010)]. Plaintiff has not shown that the exceptional circumstances necessary for appointment of counsel are present in this case.

         In the exercise of the court's discretion, it DENIES Plaintiffs Motion for Appointment of Counsel (ECF No. 39).

         IT ...


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