Bonham v. Baker

Opinion

5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6

7 BRYAN BONHAM, Case No.: 3:18-cv-00242-MMD-WGC

8 Plaintiff, ORDER

9 v. Re: ECF No. 48

10 STATE OF NEVADA, et al.,

11 Defendants.

12 13 Before the court is Plaintiff’s “Ex Parte Motion for Appointment of Counsel and Request 14 for an Evidentiary Hearing” (ECF No. 48). Plaintiff bases his motion on the fact that (1) he is 15 unable to afford counsel, (2) the substantive issues and procedural matters in this case are too 16 complex for Plaintiff’s comprehension and abilities, and (3) that “counsel is necessary to proceed 17 with discovery.” (Id. at 2.) 18 While any pro se inmate such as Mr. Bonham would likely benefit from services of 19 counsel, that is not the standard this court must employ in determining whether counsel should be 20 appointed. Wood v. Housewright, 900 F.2d 1332, 1335-1336 (9th Cir. 1990). 21 A litigant in a civil rights action does not have a Sixth Amendment right to appointed 22 counsel. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The United States Supreme 23 Court has generally stated that although Congress provided relief for violation of one’s civil rights 1 under 42 U.S.C. § 1983, the right to access to the courts is only a right to bring complaints to 2 federal court and not a right to discover such claims or even to litigate them effectively once filed 3 with a court. Lewis v. Casey, 518 U.S. 343, 354-355 (1996). 4 In very limited circumstances, federal courts are empowered to request an attorney to

5 represent an indigent civil litigant. The circumstances in which a court will grant such a request, 6 however, are exceedingly rare, and the court will grant the request under only extraordinary 7 circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 1986); 8 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 9 A finding of such exceptional or extraordinary circumstances requires that the court 10 evaluate both the likelihood of Plaintiff’s success on the merits and the pro se litigant's ability to 11 articulate his claims in light of the complexity of the legal issues involved. Neither factor is 12 controlling; both must be viewed together in making the finding. Terrell v. Brewer, 935 F.2d 1015, 13 1017 (9th Cir. 1991), citing Wilborn, supra, 789 F.2d at 1331. Thus far, Plaintiff has shown an 14 ability to articulate his claims. (ECF Nos. 1, 17, 22, 23, 25, 27, 28, 31, 43, 46.)

15 In the matter of a case's complexity, the Ninth Circuit in Wilborn noted that:

If all that was required to establish successfully the 16 complexity of the relevant issues was a demonstration of the need for development of further facts, practically all 17 cases would involve complex legal issues. Thus, although Wilborn may have found it difficult to 18 articulate his claims pro se, he has neither demonstrated a likelihood of success on the merits nor shown that the 19 complexity of the issues involved was sufficient to require designation of counsel. 20 The Ninth Circuit therefore affirmed the District Court's exercise of discretion in denying 21 the request for appointment of counsel because the Plaintiff failed to establish the case was 22 complex as to facts or law. 789 F.2d at 1331. 23 2 1 The substantive claims involved in this action are not unduly complex. Plaintiff’s 2 complaint was allowed to proceed on the Fourteenth Amendment due process claim against 3 Defendants Gouvea, Carpenter, Baker, and Wickham. (ECF No. 3 at 6.) 4 Similarly, with respect to the Terrell factors, Plaintiff has failed to convince the court of

5 the likelihood of success on the merits of his claims. In fact, Plaintiff has not discussed this issue 6 whatsoever. 7 The court does not have the power “to make coercive appointments of counsel." 8 Mallard v. U. S. Dist. Ct., 490 US 296, 310 (1989). Thus, the court can appoint counsel only under 9 exceptional circumstances. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) [cert den 130 10 S.Ct. 1282 (2010)]. Plaintiff has not shown that the exceptional circumstances necessary for 11 appointment of counsel are present in this case. 12 In the exercise of the court's discretion, it DENIES Plaintiff’s “Ex Parte Motion for 13 Appointment of Counsel and Request for an Evidentiary Hearing” (ECF No. 48). 14 IT IS SO ORDERED.

15 Dated: June 30, 2020. 16 _________________________________ WILLIAM G. COBB 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 3