United States District Court, D. Nevada
ORDER RE: ECF NO. 33
the court is Plaintiff’s Motion for Appointment of
Counsel (ECF No. 33). Plaintiff bases his motion on the fact
that (1) Plaintiff’s claim that this is a complex case
because it contains several different legal claims with each
claim involving a different set of defendants, (2) this case
involves details that may require witness testimony, (3)
Plaintiff has demanded a jury trial, (4) Plaintiff’s
contention that the case will require discovery of documents
and deposition of a number of witnesses, (5) Plaintiff states
he has only a high school education and has no legal
education, and (6) Plaintiff has limited access to legal
materials and has no ability to investigate the facts of the
case. (Id. at 2, 3.)
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.
However, as stated above in footnote 1, 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, 789 F.2d at 1331.
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, 4, 5, 6, 7, 8, 9, 11, 12, 13, 15, 16,
17, 18, 22, 24, 25, 26, 31, 32, 33, 34.)
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
against Defendant Washoe County only, as to Plaintiff’s
First Amendment mail and Fourteenth Amendment due process
claims. (ECF No. 19 at 5.) These claims are not so complex
that counsel needs to be appointed to prosecute them.
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. In fact,
Plaintiff’s motion fails to at all address any reasons
why he expects to prevail in this action.
any pro se inmate such as Mr. Jackson 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 Appointment of
Counsel (ECF No. 33).