Harris v. Ely State Prison Staff

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 AMMAR HARRIS, Case No. 3:21-CV-00380-CLB 5 Plaintiff, ORDER DENYING MOTION TO RENEW MOTION TO APPOINT 6 v. COUNSEL 7 ELY STATE PRISON STAFF, et. al., [ECF No. 98] 8 Defendants. [9] 10 Before the Court is Plaintiff Ammar Harris’s “renewed” motion for referral to the 11 pro bono lawyer program, which the Court construes as a motion for appointment of 12 counsel. (ECF No. 98.) For the reasons discussed below, the motion for appointment of 13 counsel, (ECF No. 98), is denied. 14 There is no constitutional right to appointed counsel in a § 1983 action. E.g., Rand 15 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), opinion reinstated in pertinent part, 154 16 F.3d 952 , 954 n.1 (9th Cir. 1998) (en banc). The provision in 28 U.S.C. §1915 (e)(1) gives 17 the court discretion to “request an attorney to represent any person unable to afford 18 counsel.” 28 U.S.C. § 1915 (e)(1); see, e.g., Wilborn v. Escalderon, 789 F.2d 1328 , 1331 19 (9th Cir. 1998) (en banc.) While the decision to request counsel lies within the discretion 20 of the district court, the court may exercise this discretion to request counsel only under 21 “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 22 A finding of “exceptional circumstances” requires the court to evaluate (1) the 23 plaintiff’s likelihood of success on the merits and (2) the Plaintiff’s ability to articulate his 24 claims pro se considering the complexity of the legal issues involved. [25] Id. (quoting Wilborn, 789 F.2d at 1331 ) (internal quotation marks omitted). Neither factor 26 is dispositive, and both factors must be considered before a court decides. Id. The 27 difficulties every litigant faces when proceeding pro se does not qualify as an exceptional almost any pro se litigant would benefit from the assistance of competent counsel, such 2) a benefit does not rise to the level of “exceptional circumstances.” Rand, 113 F.3d at 3 1525. Rather, the plaintiff must demonstrate that he is unable to articulate his claims due 4) to their complexity. /d. 5 Plaintiff's states his motion is one to “renew” Plaintiff's previously filed motion for 6 | referral to pro bono lawyer program, filed at ECF No. 83. The Court previously denied the 7 | motion. (See ECF No. 85.) Plaintiff's renewed motion is based on service of process for g | Defendant Dana Cole. (ECF No. 98.) 9 As the Court has found on two other occasions, (ECF Nos. 16, 85), exceptional 10 circumstances do not exist in this instance. Plaintiff only makes conclusory assertions that 14 this case is complex, however this case is limited to an Eighth Amendment deliberate 40 indifference to safety claim, and a First Amendment retaliation claim. (ECF No. 41.) These 13 claims do not involve complex issues, nor will they require expert assistance to 14 understand. Moreover, throughout the pendency of this action, Plaintiff has demonstrated that he can articulate his claims to the Court. While Plaintiff contends that he has limited knowledge in these types of proceedings, such lack of education and experience is 7 unexceptional compared to most prisoner civil rights cases. Further, to the extent Plaintiff 18 suffers from a neurological disorder, “while an incapacitating mental disability may 19 warrant the appointment of counsel in some cases, there must exists some nexus 20 between the pro se litigant’s mental disorder and his ability to articulate his claims.” 21 Langley v. Garcia, Case No. 1:16-cv-01299-BAK (HBK) 2022 WL 3691389 , *1 (E.D. Cal. 22 Aug. 25, 2022) (internal quotations and citations omitted). Plaintiff's ability to litigate this 23 case so far suggests that there is no nexus between his neurological disorder and “his ability to articulate his claims.” Accordingly, because Plaintiff has not demonstrated 25 | exceptional circumstances, the Court DENIES the motion. (ECF No. 98). 26| DATED: January 18, 2024 . [27] 28 UNITED STATES\MAGISTRATE JUDGE