Nick Stein v. The City of San Diego, et al.

• Court: District Court, S.D. California
• Decided: November 20, 2025
• Docket: 3:24-cv-00953
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NICK STEIN, Case No.: 3:24-cv-00953-DMS-AHG 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF 13 v. COUNSEL 14 THE CITY OF SAN DIEGO, et al., [ECF No. 14] 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 Before the Court is Plaintiff Nick Stein’s (“Plaintiff”) Motion for Appointment of 27 Counsel. ECF No. 14. For the reasons set forth below, the Court DENIES Plaintiff’s 28 motion. 1 I. BACKGROUND 2 Proceeding pro se and in forma pauperis, Plaintiff filed his amended complaint on 3 October 25, 2024, pursuant to 42 U.S.C. § 1983. ECF Nos. 4, 5, 6. Plaintiff alleges unlawful 4 search and seizure, excessive use of force, and Monell1 violations against the City of San 5 Diego; various police officers, including Chief of the San Diego Police Department, David 6 Nisleit; and unnamed individuals (collectively, “Defendants”). ECF No. 5. Plaintiff also 7 seeks relief under California law, asserting claims for assault, battery, false imprisonment, 8 and intentional infliction of emotional distress. Id. On August 14, 2025, Defendants filed a 9 motion to dismiss. ECF No. 15. 10 II. LEGAL STANDARD 11 There is no constitutional right to appointment of counsel in a civil case, unless an 12 indigent litigant’s physical liberty is at stake. Lassiter v. Dep’t. of Soc. Servs., 452 U.S. 18, 13 25 (1981); see e.g., United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (collecting 14 cases to show it is “well-established that there is generally no constitutional right to counsel 15 in civil cases”). Nevertheless, courts have discretion to request legal representation for “any 16 person unable to afford counsel.” See 28 U.S.C. § 1915(e)(1); see also Terrell v. Brewer, 17 935 F.2d 1015, 1017 (9th Cir. 1991). Courts have required plaintiffs to demonstrate they 18 are indigent and have made a reasonably diligent effort to secure counsel before they are 19 eligible for an appointed attorney. Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 20 1993) (extending the “reasonably diligent effort” standard used in Bradshaw v. Zoological 21 Soc’y of San Diego, 662 F.2d 1301, 1319 (9th Cir. 1981) to requests made pursuant to 28 22 U.S.C. § 1915); see e.g., Verble v. United States, No. 07-cv-0472-BEN-BLM, 2008 WL 23 2156327, at *2 (S.D. Cal. May 22, 2008). 24 Even after a plaintiff satisfies the two initial requirements of indigence and a diligent 25 attempt to obtain counsel, “he is entitled to appointment of counsel only if he can [also] 26

27 28 1 See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 1 show exceptional circumstances.” Bailey, 835 F. Supp. at 552 (citing Wilborn v. 2 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Finding exceptional circumstances 3 entails “an evaluation of both the ‘likelihood of success on the merits and the ability of the 4 plaintiff to articulate his claims pro se in light of the complexity of the legal issues 5 involved.’ Neither of these issues are dispositive and both must be viewed together before 6 reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1331); see 7 also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 8 III. DISCUSSION 9 First, the Court examines the threshold requirements of whether Plaintiff is indigent 10 and has made a reasonably diligent effort to secure counsel. Here, though Plaintiff did not 11 present details regarding his inability to afford counsel in the instant motion, the Court has 12 previously acknowledged Plaintiff’s indigence when it granted Plaintiff’s motion to 13 proceed in forma pauperis. ECF No. 6; see ECF No. 4 at 2. Additionally, Plaintiff has made 14 considerable efforts to secure counsel. Plaintiff contacted the American Civil Liberties 15 Union, the Pacific Legal Foundation, the San Diego Injury Law Center, Bulldog for Justice, 16 and Paul Neuharth, Jr., APC, to no avail. ECF No. 14 at 2. Because Plaintiff satisfies the 17 threshold requirements, the Court must now determine whether Plaintiff can show 18 exceptional circumstances by examining the likelihood of Plaintiff succeeding on the 19 merits and his ability to proceed without counsel. Wilborn, 789 F.2d at 1331; Bailey, 835 20 F. Supp. at 552. 21 A. Likelihood of Success on the Merits 22 “A plaintiff that provides no evidence of his likelihood for success at trial fails to 23 satisfy the first factor of the [exceptional circumstances] test.” Torbert v. Gore, No. 14-cv- 24 2911-BEN-NLS, 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). Here, Plaintiff has not 25 offered evidence in his motion suggesting that he is likely to succeed on the merits. Plaintiff 26 contends that his “[c]ase has merit.” ECF No. 14 at 2. Such a conclusory statement, without 27 supporting evidence, is insufficient. Ashelman v. Ogle, No. C09-5389-BHS-KLS, 2009 28 WL 4823845, at *3 (W.D. Wash. Dec. 10, 2009) (denying motion for appointment of 1 counsel where plaintiff failed to show likelihood of success on the merits beyond 2 conclusory allegation that his case had merit). Furthermore, there is little before the Court 3 regarding the merits of Plaintiff’s case, aside from the assertions in the operative 4 complaint.2 Therefore, at this early stage of the case, when the Defendants have not yet 5 answered the complaint, and when the parties have not yet engaged in discovery or 6 “proffered evidence to the Court in support of their claims and defenses, the Court cannot 7 find that Plaintiff is likely to succeed on the merits[.]” Arellano v. Hodge, No. 14-cv-590- 8 JLS-JLB, 2017 WL 1711086, at *4 (S.D. Cal. May 3, 2017) (denying motion to appoint 9 counsel when discovery had not yet been completed); Bailey, 835 F. Supp. at 552 (denying 10 motion to appoint counsel because plaintiff offered “no evidence other than his own 11 assertions to support his claims”); see Fierro v. Smith, No. 19-16786, 2022 WL 2437526, 12 at *1–*2 (9th Cir. July 5, 2022) (finding that district court did not abuse its discretion in 13 declining to appoint counsel earlier in case because it was not clear plaintiff’s claims had 14 potential merit until after summary judgment). Therefore, Plaintiff fails to satisfy the first 15 “exceptional circumstances” factor that would support his request for appointment of 16 counsel. 17 B. Ability to Articulate Claims Pro Se 18 As to the second factor, Plaintiff cites several barriers to effectively articulating his 19 claims: (1) resource disparities between himself and the City Attorney’s office; (2) the 20 complexity of the issues involved; (3) the necessity of retaining an expert to properly 21 support his claims; and (4) the need for assistance in cross-examining police witnesses at 22

23 2 That all claims in Plaintiff’s complaint survived the Court’s screening process (ECF 24 No. 6) does not demonstrate that Plaintiff is likely to succeed at trial. McGinnis v. Ramos, 25 No. 15-cv-2812-JLS-JLB, 2017 WL 474054, at *2 (S.D. Cal. Jan. 3, 2017) (stating that the Court’s screening process under § 1915 “tests not whether a plaintiff will ultimately prevail 26 on his alleged claim but whether he is entitled to offer evidence to support his claim. [] 27 Thus, the Court’s screening process did not test the merits of Plaintiff’s claim but rather only whether Plaintiff adequately stated a claim that could potentially have merit.”) 28 1 trial. ECF No. 14 at 2. However, Plaintiff fails to demonstrate an inability to represent 2 himself beyond the ordinary burdens encountered by others representing themselves 3 pro se. 4 First, Plaintiff argues that the City Attorney’s office has significantly greater 5 resources, including over 50 attorneys, while his own resources are comparatively minimal. 6 Id. However, a disparity in resources between a pro se plaintiff and represented defendants 7 does not establish exceptional circumstances. Henderson v. Lizzaraga, No. 2:18-cv-2181- 8 JAM-DMC-P, 2021 WL 4554744, at *1 (E.D. Cal. Sept. 29, 2021) (denying motion for 9 appointment of counsel when plaintiff highlighted “the disparity in resources between 10 himself and defendants[,]” explaining that “[t]hese circumstances are not exceptional but 11 represent the norm for most prisoner litigants”); Phillips v. Henry Schein, Inc., No. 2:19- 12 cv-337-RMP, 2020 U.S. Dist. LEXIS 269708, at *12–*13 (E.D. Wash. Jan. 31, 2020) 13 (denying motion for appointment of counsel when plaintiff argued that defendant was a 14 Fortune 500 Company represented by counsel, with large financial resources to litigate the 15 case, explaining that a disparity in resources does not make a case complex or establish 16 exceptional circumstances); cf. Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir. 17 1990) (resource disparity alone was insufficient to warrant appointment of counsel). Nearly 18 all civil rights cases involve institutional defendants with substantially greater resources 19 than pro se plaintiffs, yet this alone does not constitute the exceptional circumstances 20 required for appointment of counsel. See Henderson, 2021 WL 4554744, at *1. Further, 21 the need for research and investigation is common to most litigation and does not 22 automatically qualify the issues in a case as complex. Wilborn, 789 F.2d at 1331; Miller v. 23 LaMontagne, No. 10-cv-702-WQH-BGS, 2012 WL 1666735, at *1–*2 (S.D. Cal. May 11, 24 2012) (finding plaintiff's research and investigation arguments reflected “the general 25 difficulty of litigating pro se” rather than actual legal complexity). 26 Second, Plaintiff contends that the qualified immunity defense requires him to 27 analyze over ten Supreme Court cases on “clearly established law,” demonstrating 28 complexity beyond his capabilities. ECF No. 14 at 2. While qualified immunity doctrine is 1 indeed sophisticated, pro se civil rights plaintiffs routinely navigate these issues without 2 appointed counsel. Alvarez v. Ko, No. 16-cv-1302-CAB-NLS, 2017 WL 3131633, at *3 3 (S.D. Cal. July 24, 2017) (denying motion for appointment of counsel when plaintiff 4 asserted that issues of qualified immunity increased the complexity of his case, explaining 5 that “[a]ll—or nearly all—[pro se] claims based upon civil rights violations pursuant to 42 6 U.S.C. § 1983 involve defenses of qualified immunity and issues of supervisory liability. 7 The presence of these issues does not present extraordinary circumstances or affect the 8 complexity of the case such that appointment of counsel is necessary”); see also Rand v. 9 Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc) (noting that complexity alone is 10 insufficient; plaintiff must show inability to articulate claims); Wilborn, 789 F.2d at 1331 11 (denying appointment where legal issues, though complex, did not prevent plaintiff from 12 articulating claims). Plaintiff’s case is distinguishable from situations where appointment 13 is warranted. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). 14 Unlike in Agyeman, where the Ninth Circuit reversed a denial of appointment of counsel 15 due to “triple complexity” involving misconceived claims that neither the plaintiff nor the 16 district court properly identified, here, Plaintiff has sufficiently articulated claims in his 17 amended complaint. Compare 390 F.3d at 1103 with ECF No. 6 at 2–3 (finding Plaintiff's 18 amended complaint “clearer,” “more concise,” and sufficiently articulated to “warrant an 19 answer” and survive screening). Plaintiff identified his claims as arising under 42 U.S.C. 20 § 1983, named individual officers as defendants, and alleged municipal liability under 21 Monell. Moreover, qualified immunity is generally a fact specific inquiry and is typically 22 addressed on summary judgment after discovery. See Marin v. Eidgahy, No. 10-cv-1906- 23 MMA-RBB, 2012 WL 928250, at *5–*6 (S.D. Cal. Mar. 19, 2012) (citing Ramirez v. 24 Giurbino, No. 10-cv-1292-WQH-MDD, 2011 WL 2669484, at *8 (S.D. Cal. May 24, 25 2011)). To the extent that Plaintiff requires additional time to oppose a motion for summary 26 judgment regarding qualified immunity issues, he may file a motion for an extension, 27 setting forth good cause for the extension of that deadline. See cf. Rodriguez v. Allison, No. 28 21-cv-1395-JLS-AHG, 2022 WL 428967, at *2 n.1 (S.D. Cal. Dec. 11, 2022); Carroll v. 1 Warden, No. 19-cv-2162-BAS-KSC, 2021 U.S. Dist. LEXIS 93469, at *2–*5 (S.D. Cal. 2 May 17, 2021) (noting that, “to the extent restricted access to resources impede Plaintiff’s 3 ability to prosecute this action going forward, he may seek extensions of time to comply 4 with court-ordered deadlines”). 5 Third, Plaintiff asserts that he needs expert testimony to support his Monell liability 6 claims regarding San Diego Police Department’s policies and that he lacks the resources 7 to retain such an expert. ECF No. 14 at 2. However, the potential need for expert witnesses 8 does not establish exceptional circumstances warranting appointment of counsel. See e.g., 9 Brummett v. Sherman, No. 1:20-cv-00622-HBK-PC, 2025 WL 985667, at *2–*3 (E.D. Cal. 10 Apr. 2, 2025) (declining to appoint counsel despite plaintiff’s assertion that he would need 11 to introduce expert testimony and cross-examine defendant’s experts at trial); Fregia v. 12 Miranda, No. 1:21-cv-01068-AWI-BAM-PC, 2022 WL 2345636, at *1–*3 (E.D. Cal. June 13 28, 2022) (denying motion for appointment of counsel despite plaintiff’s argument that he 14 would need to retain experts regarding medical evidence and examine them at trial, and 15 denying motion to appoint independent expert witness as an advocate for plaintiff). Not all 16 Monell claims require expert testimony, and Plaintiff may be able to establish municipal 17 liability through other means, including the City’s own policies, training materials, or 18 testimony from City officials. See Canton v. Harris, 489 U.S. 378, 390 (1989); see cf. Mills 19 v. Jones, No. 1:21-cv-01193-ADA-HBK-PC, 2022 WL 4133289, at *1–*2 (E.D. Cal. Sept. 20 12, 2022) (overruling plaintiff’s objections to order denying appointment of counsel, when 21 plaintiff had requested counsel because “it will ‘probably be necessary’ to call or cross- 22 examine a medical expert at trial[,]” explaining that “[t]here is no showing at this time that 23 expert medical testimony would be necessary, much less required”). At this preliminary 24 stage, before discovery has begun, concerns about expert testimony are premature. See 25 Brummett, 2025 WL 985667, at *3. 26 Fourth, Plaintiff states that he requires the assistance of counsel to cross-examine 27 police witnesses at trial. ECF No. 14 at 2. This argument also does not demonstrate 28 “exceptional circumstances” warranting the appointment of counsel. See Wilborn, 789 F.2d 1 at 1331 (affirming denial of motion for appointment of counsel when plaintiff argued that 2 he was unable to adequately conduct discovery and examine witnesses, concluding that 3 plaintiff had not shown exceptional circumstances, explaining that “[m]ost actions require 4 development of further facts during litigation and a pro se litigant will seldom be in a 5 position to investigate easily the facts necessary to support the case”). The need for cross- 6 examining witnesses is not an exceptional circumstance in this case. French v. Mitchell, 7 No. 3:22-cv-1355-MMA-AHG, 2023 WL 4535530, at *3 (S.D. Cal. July 13, 2023) (finding 8 that “Plaintiff’s assertions regarding difficulty presenting evidence and 9 cross-examining witnesses at trial do not present exceptional circumstances 10 warranting appointment of counsel at this time” and collecting cases); Wells v. Wash. State 11 Dep’t of Corr., No. C13-234-RJB-KLS, 2013 WL 4009076, at *1 (W.D. Wash. Aug. 5, 12 2013) (finding no exceptional circumstances where plaintiff demonstrated adequate ability 13 to articulate claims pro se, case was not legally or factually complex, and concerns 14 regarding investigation, discovery, and cross-examination were typical difficulties 15 encountered by pro se litigants). Moreover, Plaintiff’s concerns about witness examination 16 at trial are premature, as this case has not yet survived the pleading stage, let alone 17 proceeded to discovery or trial. See, e.g., Goolsby v. Ridge, No. 09-cv-02654-WQH-RBB, 18 2010 WL 3418428, at *4 (S.D. Cal. Aug. 26, 2010) (finding factual disputes and 19 anticipated cross-examination of witnesses do not indicate the presence of complex legal 20 issues warranting a finding of exceptional circumstances). Therefore, Plaintiff has not 21 shown he faces barriers in examining witnesses beyond those ordinarily experienced by 22 pro se plaintiffs. 23 The Court does not doubt that Plaintiff, like most pro se litigants, finds it difficult to 24 articulate his claims and would be better served with the assistance of counsel.3 It is for 25

26 27 3 While Plaintiff may not have immense resources or legal training, he has demonstrated that he has a good grasp of litigation procedure, as evidenced by his fillings in this case. 28 1 || this reason that in the absence of counsel, federal courts employ procedures that are highly 2 || protective of a pro se litigant’s rights. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) 3 || (holding that the pleadings of a pro se litigant must be held to less stringent standards than 4 ||formal pleadings drafted by lawyers). In fact, where a plaintiff appears pro se in a civil 5 ||rights case, the court must construe the pleadings liberally and afford the plaintiff any 6 || benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th 7 || Cir. 1988). Thus, as long as a pro se litigant is able to articulate his claim, as Plaintiff is 8 || here, the second “exceptional circumstances” factor that might support the appointment of 9 || counsel is not met. 10 CONCLUSION 11 Although Plaintiff is indigent and made reasonable efforts to obtain counsel, Plaintiff 12 || failed to show exceptional circumstances warranting appointment of counsel. Thus, the 13 |}Court DENIES Plaintiff's Motion for Appointment of Counsel (ECF No. 14) without 14 || prejudice.’ 15 IT IS SO ORDERED. 16 ||Dated: November 20, 2025 _ArwiorwH. Xyolard Honorable Allison H. Goddard 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 || ———____—_- 27 Because Plaintiff's motion is denied without prejudice to refiling, Plaintiff is free to seek 28 || appointment of counsel again in the future.