O'Guinn v. Baca

Opinion

5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA

7 ROY O’GUINN, Case No.: 3:18-cv-00469-MMD-WGC 8 Plaintiff, ORDER 9 v. Re: ECF No. 38 10 ISIDRO BACA, et al., 11 Defendants. 12

13 Before the court is Plaintiff’s “Amended Appointment for Counsel, Motion” (ECF No. 38). 14 Plaintiff bases his motion on the fact that (1) he is unable to “understand and law work is not done 15 by this plaintiff,” (2) on March 8, 1981, “plaintiff was substantially disabled by a 1980 Plymouth 16 Volare going 50 mph on the Park City, Utah off-ramp off of I-80 east. My skull, brain was greatly 17 damaged by severe cerebral contusion and an extreme traumatic brain injury that did include 18 traumatic encephalopathy and my brain was greatly increased in its size,” (3) Plaintiff “had many 19 in-prison assaults to my head mainly rt. side,” (4) the “dangerous symptoms have been in my life 20 since 1981 and been recurring since 12-18-17 and 5-30-21,” and (5) “this case is medical and does 21 involve much damage to a 66 yr. old disabled man who is daily experiencing deep pains inside my 22 head that come close to a state of unconsciousness while the pain is substantial.” (Id.) Plaintiff also 23 claims he has “many neurological disorders and that I cannot be an attorney.” (Id.) 1 On December 7, 2020, Chief District Judge Miranda M. Du entered her order regarding 2 Plaintiff’s first request for the appointment of counsel (ECF No. 19), which stated in part: 3 Although Plaintiff stated a colorable failure to protect claim against Defendants Baca and Buchanan, that determination was based on allegations 4 and not evidence. Plaintiff has not yet shown a likelihood of success on the merits, and it is premature for the Court to assess whether exceptional 5 circumstances exist. Plaintiff appears to understand what claims are proceeding in this case. The Court therefore denies the motion for 6 appointment of counsel without prejudice to Plaintiff later seeking appointment of counsel if the case does not settle in mediation, the stay is 7 lifted, and Plaintiff shows exceptional circumstances.

8 (ECF No. 22 at 2; emphasis added.)

9 While the court recognizes Plaintiff claims to have certain medical issues, any pro se 10 inmate such as Mr. O’Guinn would likely benefit from services of counsel, that is not the standard 11 this court must employ in determining whether counsel should be appointed. 12 Wood v. Housewright, 900 F.2d 1332, 1335-1336 (9th Cir. 1990). 13 A litigant in a civil rights action does not have a Sixth Amendment right to appointed 14 counsel. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The United States Supreme 15 Court has generally stated that although Congress provided relief for violation of one’s civil rights 16 under 42 U.S.C. § 1983, the right to access to the courts is only a right to bring complaints to 17 federal court and not a right to discover such claims or even to litigate them effectively once filed 18 with a court. Lewis v. Casey, 518 U.S. 343, 354-355 (1996). 19 In very limited circumstances, federal courts are empowered to request an attorney to 20 represent an indigent civil litigant. The circumstances in which a court will grant such a request, 21 however, are exceedingly rare, and as Chief District Judge Du advised Plaintiff earlier, the court 22 will grant the request only under exceptional circumstances or extraordinary circumstances. 23 2 1 United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 1986); Wilborn v. 2 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 3 A finding of such exceptional or extraordinary circumstances requires that the court 4 evaluate both the likelihood of Plaintiff’s success on the merits and the pro se litigant's ability to

5 articulate his claims in light of the complexity of the legal issues involved. Neither factor is 6 controlling; both must be viewed together in making the finding. Terrell v. Brewer, 935 F.2d 1015, 7 1017 (9th Cir. 1991), citing Wilborn, supra, 789 F.2d at 1331. Plaintiff has shown an ability to 8 articulate his claims including successfully appealing the dismissal of his case to the Ninth Circuit 9 Court of Appeals. (ECF No. 18.) 10 In the matter of a case's complexity, the Ninth Circuit in Wilborn noted that: 11 If all that was required to establish successfully the complexity of the relevant issues was a demonstration of 12 the need for development of further facts, practically all cases would involve complex legal issues. Thus, 13 although Wilborn may have found it difficult to articulate his claims pro se, he has neither demonstrated 14 a likelihood of success on the merits nor shown that the complexity of the issues involved was sufficient to 15 require designation of counsel.

The Ninth Circuit therefore affirmed the District Court's exercise of discretion in denying 16 the request for appointment of counsel because the Plaintiff failed to establish the case was 17 complex as to facts or law. 789 F.2d at 1331. 18 The substantive claims involved in this action are not unduly complex. Plaintiff’s First 19 Amended Complaint was allowed to proceed on the failure to protect claims against Defendants 20 Buchanan and Baca. (ECF Nos. 18 and 22.) These claims are not so complex that counsel needs 21 to be appointed to prosecute them. 22 23 3 1 Similarly, with respect to the Terrell factors, Plaintiff has failed to convince the court of 2 the likelihood of success on the merits of his claims. Plaintiff has not provided any evidence, nor 3 has he made any argument in his motion for appointment of counsel, showing that he is likely to 4 prevail on the merits of his claim.

5 In the exercise of the court's discretion, it DENIES Plaintiff’s Amended Motion for 6 Appointment of Counsel (ECF No. 38). 7 IT IS SO ORDERED. 8 Dated: July 13, 2021. 9 _________________________________ WILLIAM G. COBB 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 4