Moore v. Lankford

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 19CV2406-DMS (BLM) 11 ROBERT MOORE,

12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF 13 v. COUNSEL

14 JOE LANKFORD, MERCEDES ARELLANO, R. [ECF No. 20] BUCKEL, AND DAVID STROMSKI, 15 Defendants. 16 17 18 19 On June 30, 2020, Plaintiff, a state prisoner proceeding and , 20 submitted a Motion for Appointment of Counsel that was received on July 6, 2020. ECF Nos. 19 21 and 20; see also ECF No. 6 (order granting motion to proceed ). In support 22 of his Motion, Plaintiff alleges that (1) he “is unable to afford counsel,” (2) his imprisonment 23 limits his ability to litigate his case which involves complex issues, and (3) “counsel would better 24 enable plaintiff to present evidence and cross examine witnesses.” ECF No. 20 at 1-2. Having 25 considered Plaintiff’s Motion and the applicable law, the Motion is DENIED for the reasons set 26 forth below. 27 LEGAL STANDARD 28 The Constitution provides no right to appointment of counsel in a civil case unless an 1 indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep’t of Soc. 2 Servs., 452 U.S. 18, 25 (1981). However, under 28 U.S.C. § 1915(e)(1), courts are granted 3 discretion to appoint counsel for indigent persons under “exceptional circumstances.” Agyeman 4 v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional 5 circumstances demands at least “an evaluation of the likelihood of the plaintiff’s success on the 6 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity 7 of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 8 1986)). 9 DISCUSSION 10 Thus far, Plaintiff has drafted and submitted several pleadings without the assistance of 11 counsel. See Docket. In addition to the instant Motion, Plaintiff has submitted a Complaint [ECF 12 No. 1], a Prisoner Trust Fund Account Statement [ECF No. 2], a Motion for Extension of Time to 13 File a Motion to Proceed [ECF No. 4], a Motion to Proceed 14 [ECF No. 5], and a Motion to Amend the Complaint [ECF No. 14]. From the Court’s review of 15 these documents, it is clear that Plaintiff is able to articulate the claims of his case. Additionally, 16 there is no indication that the issues are overly complex. 17 While it is too early for the Court to determine Plaintiff’s likelihood of success on the 18 merits, Plaintiff fails to establish the requisite “exceptional circumstances” that would warrant 19 appointment of counsel. A plaintiff is only entitled to appointed counsel if he can show “that 20 because of the complexity of the claims he [is] unable to articulate his positions.” Rand v. 21 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th 22 Cir. 1998) (en banc); see also Taa v. Chase Home Fin., 2012 WL 507430, at *2 (N.D. Cal. Feb. 23 15, 2012) (noting that plaintiffs’ lack of legal training and poverty did not constitute exceptional 24 circumstances, as these are the types of difficulties many other litigants face in proceeding in 25 ); Wilborn, 789 F.2d at 1331 (“If all that was required to establish successfully the 26 complexity of the relevant issues was a demonstration of the need for development of further 27 facts, practically all cases would involve complex issues.”); see also LaMere v. Risley, 827 F.2d 28 622, 626 (9th Cir. 1987) (affirming a district court’s denial of request for appointment of counsel 1 || where pleadings demonstrated petitioner had “a good understanding of the issues and the ability 2 || to present forcefully and coherently his contentions”). Plaintiff has not established that this case 3 “exceptional” or that the issues in it are particularly complex. 4 Because Plaintiff failed to allege the requisite “exceptional circumstances,” it is not in the 5 interest of justice to appoint counsel at this time. Accordingly, Plaintiff's Motion for Appointment 6 || of Counsel is DENIED. 7 IT IS SO ORDERED. 8 - 9 ||Dated: 7/8/2020 lxirbee Mager 10 Hon. Barbara L. ajor 1 United States Maaistrate Judae

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