Molina v. Dinh

[8] 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA [11] 12 ANDREW S. MOLINA, Case No.: 21CV1593-BTM(BLM) 13 Plaintiff, ORDER DENYING PLAINTIFF’S 14 v. MOTION FOR APPOINTMENT OF COUNSEL DR. VU DINH, [15] [EFC No. 36] 16 Defendants. [18] 19 On March 16, 2023, Plaintiff, a state prisoner proceeding and , 20 submitted a Motion to Appoint Counsel. ECF No. 36; see also ECF No. 5 (order granting motion 21 to proceed in ). In support of his motion, Plaintiff alleges that counsel should be 22 appointed because: (1) he is unable to afford an attorney; (2) his imprisonment limits his ability 23 to litigate since he has limited access to the law library and limited knowledge of the law; (3) 24 his case is complex; (4) a lawyer would be better equipped to present evidence and cross 25 examine witnesses at trial where there will likely be conflicting testimony; (5) he is unable to 26 contact certain witnesses employed at a different institution; and (6) the lawyer would be able 27 to communicate with opposing counsel more easily. ECF No. 36 at 1-3. This is Plaintiff’s second 1 appoint counsel for failing to allege exceptional circumstances). Having considered Plaintiff’s 2 motion and the applicable law, the motion is DENIED for the reasons set forth below. 3 LEGAL STANDARD 4 As Plaintiff is aware from the Court’s previous order, the Constitution provides no right to 5 appointment of counsel in a civil case unless an indigent litigant may lose his physical liberty if 6 he loses the litigation. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). However, under [7] 28 U.S.C. § 1915 (e)(1), courts are granted discretion to appoint counsel for indigent persons 8 under “exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101 , 1103 (9th 9 Cir. 2004). A finding of exceptional circumstances demands at least “an evaluation of the 10 likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to 11 articulate his claims ‘in light of the complexity of the legal issues involved.’” Id. (quoting Wilborn 12 v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 13 Only “rarely” will a federal court find a case to be so complex that it is appropriate to 14 appoint counsel for a civil litigant who faces no loss of liberty in the controversy at hand. 15 Williams v. Navarro, 2021 WL 634752 , at *2 (S.D. Cal. Feb. 17, 2021). This includes civil rights 16 litigation involving excessive use of force, deliberate indifference to medical care, retaliation, 17 and cruel and unusual punishment claims. See Goldstein v. Flament, 167 Fed. Appx. 678 , 68018 81 (9th Cir. 2006) (upholding denial of appointment of counsel for pro se prisoner where 19 retaliation and Eighth Amendment deliberate indifference to medical needs claims did not 20 demonstrate exceptional circumstances); see also Miller v. McDaniel, 124 Fed. Appx. 488 , 48921 90 (9th Cir. 2005) (upholding denial of appointment of counsel for pro se prisoner where 22 Fourteenth Amendment right to informational privacy and Eighth Amendment right to be free 23 from cruel and unusual punishment claims did not demonstrate exceptional circumstances and 24 plaintiff had the ability to articulate his claims). 25 DISCUSSION 26 Thus far, Plaintiff has drafted and submitted several pleadings without the assistance of 27 counsel. See Docket. In addition to the instant Motion, Plaintiff has submitted a complaint [ECF 1 Defendant’s motion to dismiss [ECF No. 10], and his first motion to appoint counsel [ECF No. 2 16]. From the Court’s review of these documents, it is clear that Plaintiff is able to articulate his 3 claims and arguments. 4 While Plaintiff did not address his likelihood of success, there is no indication that the 5 issues are overly complex. In his complaint, Plaintiff alleges a single cause of action for cruel 6 and unusual punishment. See EFC No. 1 at 3, 5. The Court has reviewed the complaint, and it 7 establishes that Plaintiff’s claims are “relatively straightforward” and similar to many cases that 8 have been considered by this Court. Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 9 2015). The claims and issues are not complex and Plaintiff’s demonstrated ability to articulate 10 his arguments establish that this case is not an “exceptional” one warranting the appointment 11 of counsel at this stage. See Taa v. Chase Home Fin., 2012 WL 507430 , at *2 (N.D. Cal. Feb. 12 15, 2012) (noting that plaintiffs’ lack of legal training and poverty did not constitute exceptional 13 circumstances, as these are the types of difficulties many other litigants face in proceeding pro 14 se); see also Wilborn, 789 F.2d at 1331 (“If all that was required to establish successfully the 15 complexity of the relevant issues was a demonstration of the need for development of further 16 facts, practically all cases would involve complex issues.”); LaMere v. Risley, 827 F.2d 622 , 626 17 (9th Cir. 1987) (affirming a district court’s denial of request for appointment of counsel where 18 pleadings demonstrated petitioner had “a good understanding of the issues and the ability to 19 present forcefully and coherently his contentions”). 20 Further, Plaintiff’s claims of limited access to the law library, limited legal knowledge, 21 difficulty communicating with opposing counsel, and inability to obtain testimony and conduct 22 depositions “are typical of almost every pro se prisoner civil rights plaintiff and alone” are 23 insufficient to satisfy the “exceptional circumstance” standard. See Thompson v. Paramo, 2018 24 WL 4357993 , at *1 (S.D. Cal. Sept. 13, 2018); see also Faultry v. Saechao, 2020 WL 2561596 , 25 at *2 (E.D. Cal. May 20, 2020) (stating that “[c]ircumstances common to most prisoners, such 26 as lack of legal education and limited law library access, do not establish exceptional 27 circumstances supporting appointment of counsel”); see also Snowden v. Yule, 2020 WL 1 resources, particularly during the current COVID-19 health crisis” is a circumstance that 2 || plaintiff shares with many other prisoners); Jones v. Kuppinger, 2015 WL 5522290 , at *3-4 (E.D. 3 ||Cal. Sept. 17, 2015) (‘Circumstances common to most prisoners, such as a deficient general 4 || education, lack of knowledge of the law, mental illness and disability, do not in themselves 5 || establish exceptional circumstances warranting appointment of voluntary civil counsel.”); and 6 Morris v. Barr, No. 10-CV-2642-AJB BGS, 2011 WL 3859711 , at *3 (S.D. Cal. Aug. 31, 2011) 7 || (finding “the potential need for experts, and [plaintiff's] ability to obtain discovery and conduct 8 || depositions are not exceptional circumstances warranting the appointment of counsel”). 9 In addition, Plaintiff argues that he would be better equipped, with counsel, to present 10 || evidence and cross examine witnesses at trial where there is potential for conflicting testimony. 11 No. 36 at 2. This concern does not present an exceptional circumstance warranting 12 || appointment of counsel at this time. Discovery remains ongoing and Plaintiff's claims have not 13 || yet survived summary judgment. See Leon v. Celaya, 2021 WL 533514 , at *4 (S.D. Cal. Feb. 14 |} 12, 2021) (citing Miller v. LaMontagne, 2012 WL 1666735 , at *2 (S.D. Cal. May 11, 2012) (noting 15 |/a plaintiff's concerns regarding trial did not present an exceptional circumstance warranting 16 || appointment of counsel because the case had not yet survived summary judgment)). As such, 17 || Plaintiff has not established that there are “exceptional circumstances” or that the issues in this 18 || case are particularly complex and the Court declines to appoint counsel at this time. 19 Plaintiff's Motion for Appointment of Counsel is DENIED. 20 IT IS SO ORDERED. 21 ||Dated: 3/24/2023 sobre Me or 22 Hon. Barbara L. Major United States Maqistrate Judde