United States District Court, D. Nevada
SALLY D. VILLAVERDE Plaintiff,
ROMEO ARANAS, et al, Defendants.
J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion for Appointment of
Counsel. ECF No. 15. Defendant's Opposition to
Plaintiff's Motion for Counsel (ECF No. 19) was filed on
December 16, 2019. No. reply was timely filed.
pro se litigant does not have a constitutional right
to appointed counsel upon filing a 42 U.S.C. § 1983
civil rights claim. Storseth v. Spellman, 654 F.2d
1349, 1353 (9th Cir. 1981). Rather, when considering the
potential appointment of counsel for a pro se
plaintiff, the Court must consider whether there are
“exceptional circumstances” warranting such an
appointment. 28 U.S.C. § 1915(e)(1); Palmer v.
Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983
action). A plaintiff seeking appointment of counsel must
submit information to the Court that describes “the
nature of the action, . . . the belief that the person is
entitled to redress, ” and “all assets [the
person] possesses [showing] that the person is unable to pay
. . . fees or give security therefor.” 28 U.S.C. §
Plaintiff has submitted a coherent motion stating the nature
of his actions, his belief that he is entitled to monetary
damages and injunctive relief, and that he is unable to pay
for counsel as an incarcerated individual proceeding in
forma pauperis. ECF Nos. 9 and 14. However, in addition
to demonstrating the nature of the actions, the entitlement
to redress, and the inability to pay, Plaintiff must also
demonstrate that he has failed in his “reasonable
efforts to retain private counsel.” Wong v.
Astrue, C 08-02432 SBA, 2008 WL 2725824, *5 (N.D. Cal.
July 10, 2008); Thornton v. Schwarzenegger, No.
10-01583 BTM (RBB), 2010 WL 3910446, *4 (S.D. Cal. October 4,
2010) (stating, in a § 1983 case, that “[c]ourts
have required that ‘indigent plaintiffs make a
reasonably diligent effort to secure counsel as prerequisite
to the court's appointing counsel for them, '”
citing Bailey v. Lawford, 835 F.Supp. 550,
551 (S.D. Cal. 1993)). Plaintiff does not discuss any
attempts to secure counsel prior to filing his present
request. ECF No. 15.
claims he also meets the “exceptional
circumstances” test, which he must do before the Court
will appoint counsel. 28 U.S.C. § 1915(d); Terrell
v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988).
The Ninth Circuit does a two-prong evaluation when
determining whether “exceptional circumstances”
are present. Specifically, the Court must evaluate “the
likelihood of success on the merits and the ability
of the petitioner to articulate his claims pro se in
light of the complexity of the legal issues involved.”
Terrell, 935 F.2d at 1017 (citation omitted)
(emphasis added). “Neither of these factors is
dispositive and both must be viewed together before reaching
a decision on [a] request [for] counsel.” Wilborn
v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
Court has evaluated Plaintiff's arguments and finds he
states a reasonable likelihood of success on the merits in
his claim. However, the complexities of the issues Plaintiff
presents are not exceptional when compared to the
difficulties faced by most other pro se prisoner
litigants. ECF No. 9; Housewright, 900 F.2d 1332,
1335 (9th Cir. 1990) (explaining that prisoner litigants'
lack of a legal education does not constitute
“exceptional circumstances”); Zamaro v.
Moonga, 656 Fed.Appx. 297, 299 (9th Cir. 2016)
(explaining that lack of adequate knowledge of “complex
legal and medical issues” is not an exceptional
circumstance “in light of the legal competence of most
prisoners in similar situations.”); Sands v.
Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989) (“the
Constitution does not require the elimination of all
economic, intellectual, and technological barriers to
litigation”). That is, Plaintiff argues he has limited
access to the law library and limited knowledge of the law.
ECF No. 15. Plaintiff further asserts that his case, were it
to go to trial, would involve conflicting testimony that
would be better handled by counsel. ECF No. 15. At present,
neither of these claims demonstrate an exceptional
case is just commencing. Service of Defendants was recently
ordered and is ongoing. ECF No. 14. Those Defendants served
have not answered or otherwise responded to Plaintiffs
Amended Complaint. Finally, Plaintiff has not demonstrated
any attempt to secure counsel or that his case involves such
extraordinary circumstances that appointment of counsel is
IT IS HEREBY ORDERED that Plaintiff s Motion for Appointment
of Counsel is DENIED without prejudice. Should this matter
evolve into a more complex set of facts, Plaintiff is free to
seek appointment of counsel again in the future.
FURTHER ORDERED that the Clerk of the Court shall send a copy
of this Order to ...