Johnson v. Russell

Opinion

6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7

8 JEROME JAMES JOHNSON, Case No.: 3:21-cv-00263-ART-CSD

9 Plaintiff, ORDER

10 v. Re: ECF No. 52

11 PERRY RUSSELL, et al.,

12 Defendants.

13 14 Before the court is Plaintiff’s Motion for Appointment of Counsel for Limited Purpose of 15 Settlement Negotiations (ECF No. 52).1 16 While any pro se inmate such as Mr. Johnson would likely benefit from services of counsel, 17 that is not the standard this court must employ in determining whether counsel should be appointed. 18 Wood v. Housewright, 900 F.2d 1332, 1335-1336 (9th Cir. 1990). 19 A litigant in a civil rights action does not have a Sixth Amendment right to appointed 20 counsel. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The United States Supreme 21 Court has generally stated that although Congress provided relief for violation of one’s civil rights 22

23 1 This is actually Plaintiff’s third request for appointment of counsel. See, ECF No. 16, denied on 4/11/22 in ECF No. 17 and ECF No. 25, denied on 6/2/22 in ECF No. 27. 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 the court evaluate 10 both the likelihood of Plaintiff’s success on the merits and the pro se litigant's ability to articulate 11 his claims in light of the complexity of the legal issues involved. Neither factor is controlling; both 12 must be viewed together in making the finding. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 13 1991), citing Wilborn, supra, 789 F.2d at 1331. Thus far, Plaintiff has shown an ability to articulate 14 his claims to the court.

15 In the matter of a case's complexity, the Ninth Circuit in Wilborn noted that: 16 If all that was required to establish successfully the complexity of the relevant issues was a demonstration of 17 the need for development of further facts, practically all cases would involve complex legal issues. Thus, 18 although Wilborn may have found it difficult to articulate his claims pro se, he has neither demonstrated 19 a likelihood of success on the merits nor shown that the complexity of the issues involved was sufficient to 20 require designation of counsel.

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 ] The substantive claim involved in this action is not unduly complex. Plaintiff's Complaint allowed to proceed on the alleged Eighth Amendment failure to protect claim against Defendants Kelly, Mederas, Kinder, Russell, Adams, and Gibson. (ECF No. 3 at 8.) This claim is not so complex that counsel needs to be appointed to prosecute the case. 5 Similarly, with respect to the Terrell factors, Plaintiff has failed to convince the court of 6|| the likelihood of success on the merits of his claims. In addition, as stated above, Plaintiff has shown an ability to articulate his claims and the legal issues involved are not complex. 8 In the exercise of the court's discretion, it DENIES Plaintiff's Motion for Appointment of Counsel for Limited Purpose of Settlement Negotiations (ECF No. 52). 10 IT IS SO ORDERED. 11 DATED: February 14, 2023. 12 Cc SS C x CRAIG S. DENNEY 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23