Deangelo Mitchell v. Chris Piaete, et al.

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 DEANGELO MITCHELL, Case No. 3:25-CV-00139-MMD-CLB

5 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 6 v. [ECF No. 18] 7 CHRIS PIAETE, et al.,

8 Defendants.

9 10 Before the Court is Plaintiff DeAngelo Mitchell’s (“Mitchell”) motion for 11 appointment of counsel. (ECF No. 18). Defendants did not oppose. For the reasons 12 discussed below, Mitchell’s motion for appointment of counsel is denied. 13 There is no constitutional right to appointed counsel in a § 1983 action. E.g., Rand 14 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), opinion reinstated in pertinent part, 154 15 F.3d 952, 954 n.1 (9th Cir. 1998) (en banc). The provision in 28 U.S.C. §1915(e)(1) gives 16 the court discretion to “request an attorney to represent any person unable to afford 17 counsel.” 28 U.S.C. § 1915(e)(1); see, e.g., Wilborn v. Escalderon, 789 F.2d 1328, 1331 18 (9th Cir. 1998) (en banc.) While the decision to request counsel lies within the discretion 19 of the district court, the court may exercise this discretion to request counsel only under 20 “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 21 A finding of “exceptional circumstances” requires the court to evaluate (1) the 22 plaintiff’s likelihood of success on the merits and (2) the Plaintiff’s ability to articulate his 23 claims pro se considering the complexity of the legal issues involved. Id. (quoting 24 Wilborn, 789 F.2d at 1331) (internal quotation marks omitted). Neither factor is 25 dispositive, and both factors must be considered before a court decides. Id. The 26 difficulties every litigant faces when proceeding pro se does not qualify as an exceptional 27 circumstance. Wood v. Housewright, 900 F. 2d 1332, 1335-36 (9th Cir. 1990). While 1 a benefit does not rise to the level of “exceptional circumstances.” Rand, 113 F.3d at 2 1525. Rather, the plaintiff must demonstrate that he is unable to articulate his claims due 3 to their complexity. Id. 4 In his motion for appointment of counsel, Mitchell argues he should be appointed 5 counsel because the case involves complex scientific and medical issues, including 6 expert testimony regarding: (1) the medical standard for responding to carbon monoxide 7 exposure; (2) the expected dissipation rate of CO in the bloodstream; (3) the impact of a 8 four-month delay and a twenty-hour post-shift test; and (4) the long-term consequences 9 of untreated exposure.” (ECF No. 18 at 3.) Mitchell further argues that because he is 10 incarcerated, he has no independent access to toxicology experts, cannot retain medical 11 records, cannot meaningfully interpret advanced medical records, and cannot effectively 12 conduct discovery. (Id. at 4.) The motion is also typed, instead of being handwritten, 13 indicating that someone other than Mitchell drafted, printed, and mailed the motion to 14 him to be signed and submitted. 15 Here, the Court finds that exceptional circumstances do not exist. The Court 16 screened Mitchell’s operative complaint and allowed him to proceed on two Eighth 17 Amendment claims, one for conditions of confinement and the other for deliberate 18 indifference to serious medical needs. (See ECF No. 7.) Thus, the nature of the case is 19 not necessarily more complex than cases typically brought by other pro se litigants, 20 which also frequently involve claims for Eighth Amendment deliberate indifference to 21 serious medical needs. Furthermore, it is clear from the motion for counsel itself that 22 Mitchell can articulate the specific scientific and medical expert testimony he seeks, 23 indicating that he has a somewhat sophisticated understanding of the more complex 24 portions of his claims. 25 Mitchell also argues in part that he is unable to conduct discovery because he is 26 incarcerated. However, Mitchell does not explain why he is facing more difficulties than 27 those faced by every litigant proceeding pro se. Wood, 900 F. 2d at 1335-36. Moreover, Thus, at the current juncture, the need for expert witnesses has not yet been triggered. Additionally, difficulty in accessing or retaining medical experts is a difficulty faced by almost every pro se litigant raising Eighth Amendment deliberate indifference to medical 4) needs claims, which standing alone does not rise to the level of exceptional 5 | circumstances. 6 Because Mitchell has not yet demonstrated exceptional circumstances, his motion 7 | for appointment of counsel, (ECF No. 18), is DENIED 8 DATED: April 9, 2026. .

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