United States District Court, D. Nevada
ORDER RE: ECF NO. 63
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE.
the court is Plaintiff's Motion for Appointment of
Counsel (ECF No. 63). Plaintiff bases his motion on (1) the
fact that he has been granted in forma pauperis status and is
unable to afford counsel, (2) that the substantive issues and
procedural matters in this case are too complex for
Plaintiff's comprehension and abilities, and (3) that
Plaintiff's incarceration will greatly limit his ability
to effectively litigate his case. (Id.) Plaintiff
further states his case “requires extensive documentary
discovery, deposition of prison officials, including the
ex-governor who was an attorney general, a federal judge, and
not President of the Board of Regents, possibly a
presidential candidate.” (Id. at 6.)
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).
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 has shown an ability to articulate his claims. (ECF
Nos. 1, 3, 4, 5, 6, 7, 8, 9, 18, 33, 42, 44, 56, 63, 64, 65.)
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.
Plaintiff's characterization of this action as being
complicated, the substantive claims involved in this action
are not unduly complex. Plaintiff's Second Amended
Complaint was allowed to proceed on the portion of Count I
alleging denial of access to the courts against Defendants
Jane/John Does, the portion of Count I alleging legal mail
violations against Defendant Hollman and Jane/John Does,
Count II alleging retaliation against Defendants Dr. Vanhorn,
Keast, Jacobs, Missy (dental assistant), Dr. Yup, McBroom,
Moyle, Navarro, Walsh, Dr. Aranas, and Austin, Count III
alleging deliberate deliberate indifference to serious
medical needs against Defendants Dr. Johns, Nurse Kathy,
Melissa Mitchell, Keast, Baca, and Aranas, Count IV alleging
deliberate indifference to serious dental needs against Dr.
Remsen, Ilene Sanborne, Keast, Lois Elliott, Dr. Vanhorn,
Missy (dental assistant), Perry, Linda Grankowski, Aranas,
Jacobs, Dr. Yup, Dr. Peterson, Jenifer (dental assistant),
Summer (dental assistant), Dr. Swope, Snider, and Dr.
Bannister, Count V alleging conspiracy against Defendants
Sandoval, Miller, Masto, Laxalt, Cegavske, Clinger, Wilden,
Aranas, Bannister, Jacobs, Keast, Nurse Sunshine, Reynolds,
Haycock, Cox, and Dzurenda, Count VI alleging equal
protection violations based on delaying/denying health care
to sex offenders against Defendants Missy (dental assistant),
Ilene Sanborne, Nurse Sunshine, Jenifer (dental assistant),
Perry, Keast, Jacobs, Dr. Yup, Dave (clinic supervisor),
Laura (dental assistant), and Alisha (dental assistant),
portion of Count VII alleging due process violations for gold
fixtures against Defendants Dr. Remsen, Keast, Aranas and
Cox, portion of Count VII alleging due process violations
related to inmate trust accounts against Defendants Missy
(dental assistant), Sanborne, Lara (dental assistant), Dave
(clinic supervisor), Melissa Mitchell, Candice (clinic
supervisor), Jacobs, Keast, Nurse Sunshine, Reynolds,
Haycock, Cox and Aranas, Count VIII alleging state statutory
violations against Defendants Dr. Yup, Dr. Swope, Dr.
Vanhorn, Dr. Peterson, Dr. Remsen, Cox, Perry, Snider,
Jacobs, Keast, Missy (dental assistant), Sanborne, Lara
(dental assistant), Dave (clinic supervisor), Melissa
Mitchell, Candice (clinic supervisor), Nurse Sunshine,
Reynolds, Haycock, Sandoval, Miller, Masto, Aranas and
Bannister. (ECF No. 21 at 20, 21.)
despite the numerosity of claims and Defendants, these claims
are not so complex that counsel needs to be appointed to
prosecute them. Plaintiff has repeatedly demonstrated an
ability to represent his interests, as his lengthy and
detailed motion for the appointment of counsel itself
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.
any pro se inmate such as Mr. Entsminger 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).
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.
exercise of the court's discretion, it
DENIES Plaintiffs Motion for ...