Moore v. Lankford

• Court: District Court, S.D. California
• Decided: January 14, 2021
• Docket: 3:19-cv-02406
• Status: Unknown

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 THIRD MOTION FOR APPOINTMENT OF 13 v. COUNSEL

14 JOE LANKFORD, MERCEDES ARELLANO, R. [ECF No. 37] 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 ). Plaintiff 22 argued that (1) he was “unable to afford counsel,” (2) his imprisonment limited his ability to 23 litigate his case, and (3) “counsel would better enable plaintiff to present evidence and cross 24 examine witnesses.” ECF No. 20 at 1-2. On July 9, 2020, the Court denied Plaintiff’s motion for 25 failing to allege exceptional circumstances. ECF No. 21. 26 On August 16, 2020, Plaintiff submitted a second motion for appointment of counsel that 27 was received on August 21, 2020 and accepted on discrepancy on September 4, 2020. ECF 28 Nos. 24 and 26. Plaintiff argued that (1) this is a complex matter involving several different 1 legal claims, medical issues, and defendants, (2) he has demanded a jury trial, (3) expert 2 testimony will be required, (4) conflicting testimony is likely, (5) he only has a high school 3 diploma and no legal education, and (6) due to COVID-19 he has been unable to access the law 4 library. ECF No. 26 at 3-9. On September 8, 2020, the Court denied Plaintiff’s motion for failing 5 to allege exceptional circumstances. ECF No. 29. 6 On January 5, 2021, Plaintiff submitted a third motion for appointment of counsel that 7 was received on January 8, 2021 and accepted on discrepancy on January 13, 2021. ECF Nos. 8 36 and 37. In support, Plaintiff argues that (1) this is a complex case with several legal claims 9 and defendants, (2) the case involves medical issues that will require expert testimony, (3) he 10 is being deposed on January 14, 2021 and would like counsel to be present1, (4) the case will 11 involve conflicting testimony, (5) he does not have any legal education or training and cannot 12 properly present his claims, (6) prison COVID protocols have made his library access 13 nonexistent, (7) his ability to properly investigate the case is hindered by the fact that he is 14 incarcerated, (8) he requested a jury trial which requires greater legal skill than what he 15 possesses, and (9) his case has merit. ECF No. 37. 16 LEGAL STANDARD 17 As Plaintiff is aware from the Court’s previous orders, the Constitution provides no right 18 to appointment of counsel in a civil case unless an indigent litigant may lose his physical liberty 19 if he loses the litigation. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). However, 20 under 28 U.S.C. § 1915(e)(1), courts are granted discretion to appoint counsel for indigent 21 persons under “exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 22 1103 (9th Cir. 2004). A finding of exceptional circumstances demands at least “an evaluation 23 of the likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability 24 to articulate his claims ‘in light of the complexity of the legal issues involved.’” Id. (quoting 25 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 26

27 1 Plaintiff argues that the deposition should be postponed until the Court rules on the instant 28 1 DISCUSSION 2 Thus far, Plaintiff has drafted and submitted several pleadings without the assistance of 3 counsel. See Docket. In addition to the instant Motion, Plaintiff has submitted a Complaint [ECF 4 No. 1], a Prisoner Trust Fund Account Statement [ECF No. 2], a Motion for Extension of Time to 5 File a Motion to Proceed [ECF No. 4], a Motion to Proceed 6 [ECF No. 5], a Motion to Amend the Complaint [ECF No. 14], a Motion for Appointment of 7 Counsel [ECF No. 20], Exhibits [ECF No. 23], a Motion for Appointment of Counsel [ECF No. 26], 8 a Motion to Compel Discovery [ECF No. 27], and a Reply to the Opposition to the Motion to 9 Compel [ECF No. 31]. From the Court’s review of these documents, it is clear that Plaintiff is 10 able to articulate the claims of his case. Additionally, there is no indication that the issues are 11 overly complex. 12 While it is too early for the Court to determine Plaintiff’s likelihood of success on the 13 merits, Plaintiff fails to establish the requisite “exceptional circumstances” that would warrant 14 appointment of counsel. A plaintiff is only entitled to appointed counsel if he can show “that 15 because of the complexity of the claims he [is] unable to articulate his positions.” Rand v. 16 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th 17 Cir. 1998) (en banc); see also Taa v. Chase Home Fin., 2012 WL 507430, at *2 (N.D. Cal. Feb. 18 15, 2012) (noting that plaintiffs’ lack of legal training and poverty did not constitute exceptional 19 circumstances, as these are the types of difficulties many other litigants face in proceeding in 20 ); Wilborn, 789 F.2d at 1331 (“If all that was required to establish successfully the 21 complexity of the relevant issues was a demonstration of the need for development of further 22 facts, practically all cases would involve complex issues.”); see also LaMere v. Risley, 827 F.2d 23 622, 626 (9th Cir. 1987) (affirming a district court’s denial of request for appointment of counsel 24 where pleadings demonstrated petitioner had “a good understanding of the issues and the ability 25 to present forcefully and coherently his contentions”). Plaintiff has not established that this case 26 is “exceptional”2 or that the issues in it are particularly complex. 27 28 1 The Court has denied Plaintiff's prior two requests for counsel [See ECF Nos. 21 and 29] 2 || and Plaintiff's current request does not provide any new facts justifying the appointment of 3 counsel. ECF No. 37. Because Plaintiff failed to allege the requisite “exceptional circumstances,” 4 is not in the interest of justice to appoint counsel at this time. Accordingly, Plaintiff's Motion 5 Appointment of Counsel is DENIED. Plaintiff's request to postpone his deposition also is 6 || DENIED. 7 IT 1S SO ORDERED. g ||Dated: 1/14/2021 lxiobee Mager 9 Hon. Barbara L. Major United States Maaistrate Judae 10 11 12 13 14 15 16 7p 18 || exceptional circumstance. See Faultry v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal., May 20, 2020) (stating that “[c]ircumstances common to most prisoners, such as lack of legal education 19 limited law library access, do not establish exceptional circumstances supporting 0 appointment of counsel” and noting that the “impacts of the COVID-19 health crisis on prison operations are also common to all prisoners”); see also Snowden v. Yule, 2020 WL 2539229, at 21 ||*1 (E.D. Cal., May 19, 2020) (noting that “limited access to the prison law library and resources, particularly during the current COVID-19 health crisis” is a circumstance that plaintiff shares with 22 many other prisoners); and Raya v. Barka, 2020 WL 5877848, at *3 (S.D. Cal., Oct. 2, 2020) 93 (noting that “courts in this circuit have declined to find that the COVID-19 pandemic establishes exceptional circumstances”) (citing Pitts v. Washington, 2020 WL 2850564, at *1 (W.D. Wash. 24 ||June 2, 2020) (finding that “[a]lthough Plaintiff contends he is unable to access the law library because of social distancing, this bare assertion does not justify the appointment of counsel at 25 || this time, nor does the COVID-19 pandemic”) and Montgomery v. Crane, 2020 WL 2848149, at 96 (D. Colo. June 2, 2020) (denying motion for appointment of counsel, and finding that plaintiff's inability to access the law library due to the COVID-19 pandemic was not an 27 exceptional circumstance that justified appointment of counsel because plaintiff could have requested an extension to file his responsive briefing)) .