United States District Court, D. Nevada
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE
before the court is Nevada state-prison inmate Terrell Deshon
Kemp's motion for appointment of counsel (ECF No. 21),
filed on May 6, 2019.
before the court is Kemp's motion for issuance of summons
(ECF No. 24), filed on July 10, 2019.
Appointment of counsel
moves for the appointment of counsel, arguing that he is
unable to afford a lawyer, that his case is complex because
it contains several different claims, that his case involves
medical issues and may require an expert, that depositions
will be required, and that he has demanded a jury trial. He
further argues he only has a high school education and no
litigants do 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. For example, courts have discretion,
under 28 U.S.C. § 1915(e)(1), to “request”
that an attorney represent indigent civil litigants upon a
showing of “exceptional circumstances.”
Agyeman v. Corrections Corp. of Am., 390 F.3d 1101,
1103 (9th Cir. 2004). The circumstances in which a court will
make such a request, however, are exceedingly rare and
require a finding of 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).
determine whether the “exceptional circumstances”
necessary for appointment of counsel are present, the court
evaluates (1) the likelihood of plaintiff's success on
the merits and (2) the plaintiff's ability to articulate
his claim pro se “in light of the complexity of the
legal issues involved.” Agyeman, 390 F.3d at
1103 (quoting Wilborn, 789 F.2d at 1331). Neither of
these factors is dispositive and both must be viewed
together. Wilborn, 789 F.2d at 1331. It is within
the court's discretion whether to request that an
attorney represent an indigent civil litigant under 28 U.S.C.
§ 1915(e)(1). Palmer v. Valdez, 560 F.3d 965,
970 (9th Cir. 2009).
given that Kemp's excessive force claim survived
screening, he has some likelihood of success on the merits.
Kemp's filings are comprehensible and literate. Kemp has
navigated the pleading stage and requested the court's
assistance with service of process, thereby demonstrating his
ability to articulate his claims without an attorney.
Although Kemp's case will involve medical information
related to the injuries he suffered, the legal issues in this
case are not complex. Any pro se litigant “would be
better served with the assistance of counsel.” Rand
v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing
Wilborn, 789 F.2d at 1331). Nonetheless, so long as
a pro se litigant can “articulate his claims against
the relative complexity of the matter, ” the
“exceptional circumstances” which might require
the appointment of counsel do not exist. Id. The
court in its discretion therefore finds that Kemp does not
demonstrate the exceptional circumstances required for the
appointment of an attorney at this time and will deny his
motion without prejudice.
Issuance of summons
requests that the court issue summonses for Officer Cordova,
Officer Cordero, and the three John Doe officers in this
case. He also requests assistance with service of process.
United States district judge assigned to this case adopted
the undersigned's report and recommendation regarding
Kemp's civil-rights complaint. (Order (ECF No. 20).) The
order detailed which claims would proceed against which
defendants and advised Kemp regarding the claims that were
dismissed with leave to amend. (Id.) The order also
stated that if Kemp decided not to file a second amended
complaint, the case would proceed only on Kemp's Fourth
Amendment excessive-force claim against Officer Cordova,
Officer Cordero, and the three John Doe Officers. Kemp did
not file an amended complaint by the court-ordered deadline,
nor did he request an extension of time to do so.
Accordingly, the court will grant Kemp's motion for
issuance of summonses and assistance with service on these
THEREFORE ORDERED that plaintiff Terrell Deshon Kemp,
Sr.'s motion for appointment of ...