Jackson v. County of Washoe

Opinion

1 2 UNITED STATES DISTRICT COURT 4 JOHN EDWARD JACKSON, Case No.: 3:19-cv-00162-MMD-WGC 5 Plaintiff, ORDER 6 v. Re: ECF No. 33 7 CITY OF RENO, et al., 8 Defendants. 9 10 Before the court is Plaintiff’s Motion for Appointment of Counsel (ECF No. 33). Plaintiff 11 bases his motion on the fact that (1) Plaintiff’s claim that this is a complex case because it contains 12 several different legal claims with each claim involving a different set of defendants, (2) this case 13 involves details that may require witness testimony, (3) Plaintiff has demanded a jury trial, 14 (4)Plaintiff’s contention that the case will require discovery of documents and deposition of a

15 number of witnesses, (5) Plaintiff states he has only a high school education and has no legal 16 education, and (6) Plaintiff has limited access to legal materials and has no ability to investigate 17 the facts of the case. (Id. at 2, 3.)1 18 1 Plaintiff states his “motion for appointment of counsel should be granted pursuant to 28 U.S.C. 19 § 1746.” (Id. at 3.) This statute only pertains to verification of the truthfulness or correctness of a 20 document. It does not address grounds for appointment of counsel for an indigent pro se party. The authority of the court to request an attorney to represent a person unable to afford counsel 21 appears in 28 U.S.C. § 1915(d). The court will address Plaintiff’s motion under that statute and the cases interpreting the grounds which must be present in order to appoint counsel. As will be 22 discussed in this Order, the circumstances under which a court will appoint counsel are exceedingly rare and only under extraordinary circumstances. Wilborn v. Escalderon, 789 23 F.2d 1328, 1331 (9th Cir. 1986). 1 1 A litigant in a civil rights action does not have a Sixth Amendment right to appointed 2 counsel. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The United States Supreme 3 Court has generally stated that although Congress provided relief for violation of one’s civil rights 4 under 42 U.S.C. § 1983, the right to access to the courts is only a right to bring complaints to

5 federal court and not a right to discover such claims or even to litigate them effectively once filed 6 with a court. Lewis v. Casey, 518 U.S. 343, 354-355 (1996). 7 In very limited circumstances, federal courts are empowered to request an attorney to 8 represent an indigent civil litigant. However, as stated above in footnote 1, the circumstances in 9 which a court will grant such a request, however, are exceedingly rare, and the court will grant the 10 request under only extraordinary circumstances. United States v. 30.64 Acres of Land, 795 F.2d 11 796, 799-800 (9th Cir. 1986); Wilborn, 789 F.2d at 1331. 12 A finding of such exceptional or extraordinary circumstances requires that the court 13 evaluate both the likelihood of Plaintiff’s success on the merits and the pro se litigant's ability to 14 articulate his claims in light of the complexity of the legal issues involved. Neither factor is

15 controlling; both must be viewed together in making the finding. Terrell v. Brewer, 935 F.2d 1015, 16 1017 (9th Cir. 1991), citing Wilborn, supra, 789 F.2d at 1331. Plaintiff has shown an ability to 17 articulate his claims. (ECF Nos. 1, 4, 5, 6, 7,8, 9, 11, 12, 13, 15, 16, 17, 18, 22, 24, 25, 26, 31, 32, 18 33, 34.) 19 In the matter of a case's complexity, the Ninth Circuit in Wilborn noted that: 20 If all that was required to establish successfully the complexity of the relevant issues was a demonstration of the need for development 21 of further facts, practically all cases would involve complex legal issues. Thus, although Wilborn may have found it difficult to articulate his claims pro se, he has neither demonstrated a likelihood 22 of success on the merits nor shown that the complexity of the issues involved was sufficient to require designation of counsel. 23 2 1 The Ninth Circuit therefore affirmed the District Court's exercise of discretion in denying 2 the request for appointment of counsel because the Plaintiff failed to establish the case was 3 complex as to facts or law. 789 F.2d at 1331. 4 The substantive claims involved in this action are not unduly complex. Plaintiff’s

5 Complaint was allowed to proceed against Defendant Washoe County only, as to Plaintiff’s First 6 Amendment mail and Fourteenth Amendment due process claims. (ECF No. 19 at 5.) These claims 7 are not so complex that counsel needs to be appointed to prosecute them. 8 Similarly, with respect to the Terrell factors, Plaintiff has again failed to convince the court 9 of the likelihood of success on the merits of his claims. In fact, Plaintiff’s motion fails to at all 10 address any reasons why he expects to prevail in this action. 11 While any pro se inmate such as Mr. Jackson would likely benefit from services of counsel, 12 that is not the standard this court must employ in determining whether counsel should be appointed. 13 Wood v. Housewright, 900 F.2d 1332, 1335-1336 (9th Cir. 1990). 14 The court does not have the power “to make coercive appointments of counsel."

15 Mallard v. U. S. Dist. Ct., 490 US 296, 310 (1989). Thus, the court can appoint counsel only under 16 exceptional circumstances. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) [cert den 130 17 S.Ct. 1282 (2010)]. Plaintiff has not shown that the exceptional circumstances necessary for 18 appointment of counsel are present in this case. 19 /// 20 /// 21 /// 22 /// 23 3 1 In the exercise of the court's discretion, it DENIES Plaintiff’s Motion for Appointment of 2 Counsel (ECF No. 33). 3 IT IS SO ORDERED. 4 DATED: September 24, 2019. 5 _____________________________________ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 4