Gardeley v. Dzurenda

Opinion

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

4 MARQUE GARDELEY, Case No. 3:24-CV-00234-ART-CLB

5 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 6 v. [ECF No. 18] 7 JAMES DZURENDA, et al.,

8 Defendants.

9 10 Before the Court is Plaintiff Marque Gardeley’s motion for appointment of counsel. 11 (ECF No. 18.) No response was filed. For the reasons discussed below, the motion for 12 appointment of counsel, (ECF No. 18), 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. 24 Id. (quoting Wilborn, 789 F.2d at 1331) (internal quotation marks omitted). Neither factor 25 is 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 ? 1525. Rather, the plaintiff must demonstrate that he is unable to articulate his claims due to their complexity. /d. 4 Plaintiff has filed three motions for appointment of counsel previously in this case 5 | (ECF Nos. 10, 11, 12), which were all denied without prejudice. (See ECF Nos. 14, 16.) 6 | In the present motion, Plaintiff argues he should be appointed counsel because (1) he 7 | cannot obtain counsel due to his financial status, (2) his imprisonment will limit his ability 8 | to litigate his claims, (3) the issues in the case are “complex” and will require significant research and investigation, (4) he is deaf and will require an interpreter, and (5) he has 10 | limited knowledge of the law. (ECF No. 18.) 11 The Court does not find exceptional circumstances exist in this case. Plaintiff only 12 makes conclusory assertions that this case is complex, however this case is limited to 13 | claims under the Fourteenth Amendment equal protection, First Amendment free speech, 14| and ADA and RA violations, which do not involve complex questions, nor do they require 15 expert assistance to understand. Moreover, while Plaintiff is hearing impaired, he has 16 | been able to effectively communicate with the Court and Defendants to this point. Finally, Plaintiffs contention that he has limited knowledge in these types of proceedings is unexceptional compared to most prisoner civil rights cases. Accordingly, Plaintiff has not 19| demonstrated exceptional circumstances, and thus, the motion for appointment of 20 counsel, (ECF No. 18), is DENIED without prejudice. 21 IT IS SO ORDERED. 22 DATED: March 27, 2025 23 * 24 95 UNITED STATES\MAGISTRATE JUDGE 26 27 28