Nogales v. Burke

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE NOGALES, CDCR #G-52536, Case No.: 22-cv-702-MMA-DEB

12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. [DKT. NO. 21] 14 ISU OFFICER BURKE, et al., 15 Defendants. 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff Jose Nogales’ Motion for Appointment of Counsel 19 (“Motion”). Dkt. No. 21. Plaintiff is a state prisoner proceeding pro se and in forma 20 pauperis on a claim filed pursuant to 42 U.S.C. § 1983. Dkt. Nos. 5, 9. For the reasons 21 discussed below, the Court DENIES Plaintiff’s Motion without prejudice. 22 II. BACKGROUND 23 The Court summarized Plaintiff’s claims in the June 6, 2022 Order Screening 24 Complaint. Dkt. No. 4 at 2–5, 10–11.1 25 / / 26

27 1 When referencing page numbers for documents filed with the Court, the Court’s citation 28 1 III. LEGAL STANDARD 2 An indigent’s right to appointed counsel exists “only where the litigant may lose his 3 physical liberty if he loses the litigation.” Lassiter v. Dep’t of Soc. Servs. of Durham Cty., 4 N. C., 452 U.S. 25 (1981). District Courts generally lack authority to require counsel to 5 represent indigent prisoners in Section 1983 cases. Mallard v. U.S. Dist. Court for S. Dist. 6 of Iowa, 490 U.S. 296, 298–309 (1989). Appointing counsel is reserved for exceptional 7 circumstances. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). When assessing 8 whether exceptional circumstances exist, the Court must undergo “an evaluation of both 9 ‘the likelihood of success on the merits [and] the ability of the petitioner to articulate his 10 claims pro se in light of the complexity of the legal issues involved.’” Wilborn v. 11 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Courts must consider both factors, and 12 neither is individually dispositive. Id. 13 IV. DISCUSSION 14 Plaintiff contends the Court should appoint counsel because “[his] claims are 15 meritorious” but complex because: (1) “the three retaliation claims . . . (counts two, three, 16 and eight) . . . involve some high ranking correctional sergeants and lieutenants who have 17 extensive history of staff misconduct, grievances, and lawsuits”; (2) the “void-for- 18 vagueness claim (count seven) . . . is a novel challenge that requires gathering large 19 amounts of data”; and (3) Plaintiff believes he could assert additional state law based 20 claims but “simply does not have the confidence to raise them himself.” Dkt. No. 21 at 4– 21 7. 22 Although Plaintiff contends “there certainly exists a likelihood of success on the 23 merits,” it is premature to evaluate the strength of his claim at this early stage of the 24 proceedings. See, e.g., Garcia v. Smith, No. 10-cv-1187-AJB-RBB, 2012 WL 2499003, at 25 *3 (S.D. Cal. June 27, 2012) (denying motion for appointment of counsel even though 26 plaintiff’s complaint had survived a motion to dismiss, because it was too early to 27 determine whether any of plaintiff's claims would survive a motion for summary 28 1 judgment). The Court, therefore, has no basis to find a likelihood that Plaintiff will succeed 2 on the merits of his claims. 3 Moreover, there is no reason to conclude Plaintiff lacks the ability to articulate and 4 prosecute his claims. He has demonstrated the ability to articulate the essential facts 5 supporting his claims, which appear relatively straightforward and uncomplicated. See Dkt. 6 No. 4 at 5, 11 (Plaintiff “plausibly alleges that adverse actions of the type that might chill 7 an inmate’s free exercise of his First Amendment rights were taken against [him,]” “that 8 ordinary people would not understand that constructive possession of a wireless 9 communication device in prison includes posing for photographs taken by the device, and 10 . . . that [Title 15, California Code of Regulations § 3306] was used against him in an 11 arbitrary and discriminatory manner”). Plaintiff has prepared and filed: (1) a Complaint 12 that survived 28 U.S.C. § 1915A(b) screening (Dkt. Nos. 1, 4); (2) a First Amended 13 Complaint that survived 28 U.S.C. § 1915A(b) screening (Dkt. Nos. 5, 6); (3) a motion to 14 proceed in forma pauperis which the Court granted (Dkt. Nos. 8, 9); and (4) this Motion 15 (Dkt. No. 21). These filings demonstrate that Plaintiff is able to articulate his claims and 16 navigate civil procedure without legal assistance. Palmer v. Valdez, 560 F.3d 965, 970 (9th 17 Cir. 2009) (finding exceptional circumstances were not satisfied where the District Court 18 observed Plaintiff “was well-organized, made clear points, and presented the evidence 19 effectively”). 20 Finally, pro se litigants are afforded some leniency to compensate for their lack of 21 legal training. “In civil rights cases where the plaintiff appears pro se, the court must 22 construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” 23 Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal citation omitted). This 24 leniency applies to motions. Bernhardt v. Los Angeles Cty., 339 F.3d 920, 925 (9th Cir. 25 2003). The Court will take Plaintiff’s pro se status into consideration when reviewing his 26 filings. 27 / / 28 / / l Vv. CONCLUSION 2 For these reasons, the Court finds Plaintiff has not demonstrated exceptional 3 ||circumstances to warrant appointment of counsel. Plaintiff's Motion is, therefore, 4 || DENIED without prejudice to renewal at a later stage of the proceedings. 5 IT IS SO ORDERED. 6 || Dated: March 2, 2023 — PTT g Honorable Daniel E. Butcher United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28