1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN LEWIS, JR., Case No. 1:22-cv-00628-NODJ-CDB (PC) 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. 14 ALAN QUINTO, et al., (Doc. 29) 15 Defendants. 16 17 18 Plaintiff Kevin Lewis, Jr., is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed under 42 U.S.C. § 1983. 20 I. Background 21 This action proceeds on Plaintiff’s Eighth Amendment claim for use of excessive force 22 against Defendants Quinto, Gilbert, Brown, and Hernandez, Correctional Officers (“COs”) at 23 North Kern State Prison, and claim for failure to protect against COs Brown and Hernandez. 24 (Docs. 15, 19, 20.) Defendants’ have not yet appeared and their time to respond to the operative 25 complaint has not expired. 26 II. Plaintiff’s Motion for Appointment of Counsel 27 On December 29, 2023, Plaintiff filed the pending motion for appointment of counsel. (Doc. 29.) In his motion, Plaintiff represents that he is “a mental health patient and do not 1 understand proceedings and procedures of the Court. I have an adult basic education score of 9.0 2 which makes it hard to comprehend.” Id. 3 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. 4 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 5 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 6 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 7 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 8 to section 1915(e)(1). Rand, 113 F.3d at 1525. 9 Given that the Court has no reasonable method of securing and compensating counsel, the 10 Court will seek volunteer counsel only in extraordinary cases. In determining whether 11 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 12 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 13 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 14 citations omitted). 15 Likelihood of Success on the Merits 16 At this stage in the proceedings, the Court cannot determine whether Plaintiff is likely to 17 succeed on the merits. Rand, 113 F.3d at 1525. A merits-based determination tests the veracity of 18 the claims based upon evidence adduced during litigation. The issues involved here are not 19 complex. Plaintiff’s Eighth Amendment excessive force and failure to protect claims will largely 20 involve factual determinations as opposed to more complex legal arguments and determinations. 21 Plaintiff’s Ability to Articulate Claims 22 The Court finds Plaintiff is able to articulate his claims as demonstrated by the fact that 23 the Court has found cognizable claims pleaded against multiple Defendants. Rand, 113 F.3d at 24 1525. Further, Plaintiff has responded appropriately to the Court’s orders and filed motions for 25 summary and default judgment. (Docs. 1, 13, 14, 16.) 26 To the extent Plaintiff requests a competency hearing, “[a] party proceeding pro se in a 27 civil lawsuit is entitled to a competency determination when substantial evidence of 1 what constitutes “substantial evidence” is not specifically denoted in Allen; however, courts may 2 consider evidence such as sworn declarations and letters from treating psychiatrists. Id. at 1151– 3 53. In Allen, the Ninth Circuit found substantial evidence of incompetency where the petitioner 4 submitted his own sworn declaration and another inmate’s declaration explaining petitioner’s 5 mental illness and inability to understand the court's orders, as well as a letter from the 6 petitioner’s psychiatrist detailing his diagnosed schizophrenia and medications. Id. at 1153. 7 An incapacitating mental disability may be grounds for appointment of counsel in some 8 cases, but a plaintiff making that argument must present substantial evidence of incompetence. 9 See McElroy v. Cox, No. 08–1221 JM (AJB), 2009 WL 4895360, at *2 (E.D. Cal. Dec. 11, 2009). 10 In McElroy, the plaintiff, a pro se prisoner in a section 1983 case, presented documents similar to 11 those provided in Allen to support his mental disability; however, the court found “there is no 12 nexus between his mental disorder and his ability to articulate his claims.” Id. at *3. The court 13 found the plaintiff’s ability to articulate his claim was not affected by his mental disorder. Id. The 14 plaintiff had successfully survived screening, successfully opposed Defendants’ motion to dismiss 15 by presenting legal arguments with documentary support, and his motions for appointment of 16 counsel were drafted with clarity and proper arguments. Id. Medical records also showed that he 17 functioned well when properly medicated. Id. The court denied Plaintiff’s motion to appoint 18 counsel because he had not shown that the interests of justice or exceptional circumstances 19 warranted appointment of counsel. Id. 20 Here, Plaintiff has offered only his summary statement that he is a “mental health patient” 21 with an adult basic education score of 9.0, which does not constitute substantial evidence of 22 incompetence. See Yocom v. County of Tulare, No. 1:21-cv-00849-HBK (PC), 2023 WL 23 5723828, at *1 (E.D. Cal. Sept. 5, 2023); Meeks v. Nunez, No. 13cv973-GPC (BGS), 2017 WL 24 476425, at *3 (S.D. Cal. Feb. 6, 2017). 25 Additionally, even assuming Plaintiff is not well versed in the law and has made serious 26 allegations that, if proven, would entitle him to relief, Plaintiff’s case is not exceptional. The 27 Court is faced with similar cases almost daily. While the Court recognizes that Plaintiff is at a 1 benefit from the appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 2 Cir. 1986). The test is whether exceptional circumstances exist; here, they do not. Indeed, 3 circumstances common to most prisoners, such as lack of legal education and limited law library 4 access, do not establish exceptional circumstances that would warrant a request for voluntary 5 assistance of counsel. See, e.g., Faultry v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal., May 20, 6 2020) (stating that “[c]ircumstances common to most prisoners, such as lack of legal education 7 and limited law library access, do not establish exceptional circumstances supporting appointment 8 of counsel”); see also Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 9 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner “may 10 well have fared better-particularly in the realm of discovery and the securing of expert 11 testimony”). 12 Plaintiff is advised the fact an attorney may be better able to perform research, investigate, 13 and represent a plaintiff does not change the analysis. There is little doubt most pro se litigants 14 “find it difficult to articulate [their] claims,” and would be better served with the assistance of 15 counsel. Wilborn, 789 F.2d at 1331; Courtney v. Kandel, No. 2:18-CV-2052-KJM-DMC-P, 2020 16 WL 1432991, at *1 (E.D. Cal. Mar.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN LEWIS, JR., Case No. 1:22-cv-00628-NODJ-CDB (PC) 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. 14 ALAN QUINTO, et al., (Doc. 29) 15 Defendants. 16 17 18 Plaintiff Kevin Lewis, Jr., is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed under 42 U.S.C. § 1983. 20 I. Background 21 This action proceeds on Plaintiff’s Eighth Amendment claim for use of excessive force 22 against Defendants Quinto, Gilbert, Brown, and Hernandez, Correctional Officers (“COs”) at 23 North Kern State Prison, and claim for failure to protect against COs Brown and Hernandez. 24 (Docs. 15, 19, 20.) Defendants’ have not yet appeared and their time to respond to the operative 25 complaint has not expired. 26 II. Plaintiff’s Motion for Appointment of Counsel 27 On December 29, 2023, Plaintiff filed the pending motion for appointment of counsel. (Doc. 29.) In his motion, Plaintiff represents that he is “a mental health patient and do not 1 understand proceedings and procedures of the Court. I have an adult basic education score of 9.0 2 which makes it hard to comprehend.” Id. 3 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. 4 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 5 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 6 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 7 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 8 to section 1915(e)(1). Rand, 113 F.3d at 1525. 9 Given that the Court has no reasonable method of securing and compensating counsel, the 10 Court will seek volunteer counsel only in extraordinary cases. In determining whether 11 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 12 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 13 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 14 citations omitted). 15 Likelihood of Success on the Merits 16 At this stage in the proceedings, the Court cannot determine whether Plaintiff is likely to 17 succeed on the merits. Rand, 113 F.3d at 1525. A merits-based determination tests the veracity of 18 the claims based upon evidence adduced during litigation. The issues involved here are not 19 complex. Plaintiff’s Eighth Amendment excessive force and failure to protect claims will largely 20 involve factual determinations as opposed to more complex legal arguments and determinations. 21 Plaintiff’s Ability to Articulate Claims 22 The Court finds Plaintiff is able to articulate his claims as demonstrated by the fact that 23 the Court has found cognizable claims pleaded against multiple Defendants. Rand, 113 F.3d at 24 1525. Further, Plaintiff has responded appropriately to the Court’s orders and filed motions for 25 summary and default judgment. (Docs. 1, 13, 14, 16.) 26 To the extent Plaintiff requests a competency hearing, “[a] party proceeding pro se in a 27 civil lawsuit is entitled to a competency determination when substantial evidence of 1 what constitutes “substantial evidence” is not specifically denoted in Allen; however, courts may 2 consider evidence such as sworn declarations and letters from treating psychiatrists. Id. at 1151– 3 53. In Allen, the Ninth Circuit found substantial evidence of incompetency where the petitioner 4 submitted his own sworn declaration and another inmate’s declaration explaining petitioner’s 5 mental illness and inability to understand the court's orders, as well as a letter from the 6 petitioner’s psychiatrist detailing his diagnosed schizophrenia and medications. Id. at 1153. 7 An incapacitating mental disability may be grounds for appointment of counsel in some 8 cases, but a plaintiff making that argument must present substantial evidence of incompetence. 9 See McElroy v. Cox, No. 08–1221 JM (AJB), 2009 WL 4895360, at *2 (E.D. Cal. Dec. 11, 2009). 10 In McElroy, the plaintiff, a pro se prisoner in a section 1983 case, presented documents similar to 11 those provided in Allen to support his mental disability; however, the court found “there is no 12 nexus between his mental disorder and his ability to articulate his claims.” Id. at *3. The court 13 found the plaintiff’s ability to articulate his claim was not affected by his mental disorder. Id. The 14 plaintiff had successfully survived screening, successfully opposed Defendants’ motion to dismiss 15 by presenting legal arguments with documentary support, and his motions for appointment of 16 counsel were drafted with clarity and proper arguments. Id. Medical records also showed that he 17 functioned well when properly medicated. Id. The court denied Plaintiff’s motion to appoint 18 counsel because he had not shown that the interests of justice or exceptional circumstances 19 warranted appointment of counsel. Id. 20 Here, Plaintiff has offered only his summary statement that he is a “mental health patient” 21 with an adult basic education score of 9.0, which does not constitute substantial evidence of 22 incompetence. See Yocom v. County of Tulare, No. 1:21-cv-00849-HBK (PC), 2023 WL 23 5723828, at *1 (E.D. Cal. Sept. 5, 2023); Meeks v. Nunez, No. 13cv973-GPC (BGS), 2017 WL 24 476425, at *3 (S.D. Cal. Feb. 6, 2017). 25 Additionally, even assuming Plaintiff is not well versed in the law and has made serious 26 allegations that, if proven, would entitle him to relief, Plaintiff’s case is not exceptional. The 27 Court is faced with similar cases almost daily. While the Court recognizes that Plaintiff is at a 1 benefit from the appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 2 Cir. 1986). The test is whether exceptional circumstances exist; here, they do not. Indeed, 3 circumstances common to most prisoners, such as lack of legal education and limited law library 4 access, do not establish exceptional circumstances that would warrant a request for voluntary 5 assistance of counsel. See, e.g., Faultry v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal., May 20, 6 2020) (stating that “[c]ircumstances common to most prisoners, such as lack of legal education 7 and limited law library access, do not establish exceptional circumstances supporting appointment 8 of counsel”); see also Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 9 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner “may 10 well have fared better-particularly in the realm of discovery and the securing of expert 11 testimony”). 12 Plaintiff is advised the fact an attorney may be better able to perform research, investigate, 13 and represent a plaintiff does not change the analysis. There is little doubt most pro se litigants 14 “find it difficult to articulate [their] claims,” and would be better served with the assistance of 15 counsel. Wilborn, 789 F.2d at 1331; Courtney v. Kandel, No. 2:18-CV-2052-KJM-DMC-P, 2020 16 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020) (challenges conducting discovery and preparing for 17 trial “are ordinary for prisoners pursuing civil rights claim” and cannot form the basis for 18 appointment of counsel). For this reason, in the absence of counsel, federal courts employ 19 procedures which are highly protective of a pro se litigant's rights. See Haines v. Kerner, 404 U.S. 20 519, 520 (1972) (holding pro se complaint to less stringent standard) (per curiam). In fact, where 21 a plaintiff appears pro se in a civil rights case, the court must construe the pleadings liberally and 22 afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 23 621, 623 (9th Cir. 1988). The rule of liberal construction is “particularly important in civil rights 24 cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, where a pro se litigant can 25 “articulate his claims” in light of the relative complexity of the matter, the “exceptional 26 circumstances” which might require the appointment of counsel do not exist. Wilborn, 789 F.2d at 27 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 1 | Ramm, No. 2:16-cv-0694 JAM AC P, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018) (“The 2 | law is clear: neither plaintiffs indigence, nor his lack of education, nor his lack of legal expertise 3 | warrant the appointment of counsel”). 4 In sum, Plaintiff faces challenges and circumstances faced by most pro se prisoner 5 | litigants. Nevertheless, those circumstances are not exceptional and do not warrant the 6 | appointment of counsel. Rand, 113 F.3d at 1525. 7 | I. Conclusion and Order 8 Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion to Appoint Counsel 9 | (Doc. 29) is DENIED without prejudice. 10 | IT IS SO ORDERED. | Dated: _ January 3, 2024 | hr 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28