United States District Court, D. Nevada
ORDER RE: ECF NO. 60
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE.
the court is Plaintiff's Motion for Appointment of
Counsel (ECF No. 60). Plaintiff bases his motion on (1) the fact
that he is unable to afford counsel, (2) that the court's
General Order 2017-07 states that “attorneys admitted
to practice in this district have a strong tradition of
providing pro bono representation to indigent litigants in
civil cases - in the courts of the State of Nevada, ”
(3) Defendants represented by counsel (Brian Sooudi) have
unlimited access to resources such as internet, law library
and expert witnesses, (4) that Plaintiff's incarceration
will “greatly limit” his ability to effectively
litigate his case, (5) Plaintiff has limited funds to obtain
the materials needed for litigation through U.S. mail, (6) a
trial in this case will likely involve conflicting testimony
and counsel would better enable Plaintiff to present evidence
and cross examine witnesses, and (7) Plaintiff is unable to
have any medical records at the Washoe County Jail and these
records are essential in proving claims made by the
discussed in this court's prior orders denying
Plaintiff's motion for appointment of counsel (ECF Nos.
17, 22), 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).
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).
court also advised Plaintiff when it denied Plaintiff's
prior motions for appointment of counsel (ECF Nos. 17, 22), 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 thus far shown an ability to articulate his
claims. (ECF Nos. 1, 3, 16, 18, 20, 33, 35, 39, 50, 51, 53,
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 claim involved in Plaintiff's action are not
unduly complex. Plaintiff's Amended Complaint was allowed
to proceed on the Fourth Amendment excessive force claim
against Reno Police Officers Lancaster and Mayfield whom he
claims assaulted and injured Plaintiff while being arrested.
(ECF No. 13 at 8, 9.) This claim is not so complex that
counsel needs to be appointed to prosecute it.
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
includes no discussion of the merits of any of his claims.
any pro se inmate such as Mr. Berry 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. 60).