United States District Court, D. Nevada
ORDER RE: ECF NO. 39
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
the court is Plaintiff's Request for an Appointment of
Counsel (ECF No. 39). Plaintiff bases his motion on (1) the
fact that he has “little to no legal knowledge and
forced to succum (sic) to the assistance of untrained inmates
in hopes of prosecuting his claims, ” (2) that
Plaintiff is in “24 hour lock down a day (except for a
few hours of yard on Mondays and Thursdays placed in a cage
alone), ” and (3) Plaintiff's “inability to
directly and physically access the prison law library to
communicate his legal concerns and forced to function on a
paging system.” (Id. at 3, 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). 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, 32, 3740, 41.)
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 claims involved in this action are not unduly
complex. Plaintiff's Complaint was allowed to proceed on
the portions of Count I alleging violations of the Eighth
Amendment for failure to protect and deliberate indifference
to his serious medical needs against Defendants Olivas, Chan,
Owens, Fonoimoana and Mosely, on Count II alleging violation
of due process against Defendants Bellinger, Carpenter and
Bennett, and on the portion of Count III alleging retaliation
in violation of the First Amendment against Defendants
Bennett and Olivas. (ECF No. 3 at 14.) These claims are not
so complex that counsel needs to be appointed to prosecute
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. Duncan 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 Request for an Appointment
of Counsel (ECF No. 39).