(PC) Moore v. Espinoza

• Court: District Court, S.D. California
• Decided: June 30, 2025
• Docket: 3:24-cv-00626
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 24-cv-0626-LL (BLM) 11 MARCUS J. MOORE,

12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. ECF No. 28 14 G. ESPINOZA, et al., 15 Defendants. 16 17 On June 6, 2025, Marcus Moore (“Plaintiff”) filed a Motion Requesting Appointment of 18 Counsel (“Mot.”) pursuant to 28 U.S.C. § 1915(e)(1). ECF No. 28. 19 PROCEDURAL BACKGROUND 20 Plaintiff is proceeding in this civil rights action pursuant to 42 U.S.C § 1983. See 21 ECF No. 1. Plaintiff initially filed his Complaint in the Eastern District of California with a Motion 22 to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915. However, the case was 23 transferred to this Court on March 28, 2024, pursuant to 28 U.S.C. § 1406(a) because Plaintiff 24 alleges several correctional officials employed by Richard J. Donovan Correctional Facility (“RJD”) 25 in San Diego, used excessive force against him while he was incarcerated there in September 26 2023. See ECF No. 4. 27 On June 27, 2024, United States District Judge Linda Lopez granted Plaintiff’s Motion to 1 U.S.C. §§ 1915(e)(2) and 1915A(a), and his Eighth Amendment excessive force claims to be 2 plausible. ECF No. 11. As a result, District Judge Lopez directed the United States Marshal to 3 effect service of process of Plaintiff’s Complaint on the named Defendants pursuant to 28 U.S.C. 4 § 1915(d) and Fed. R. Civ. P. 4(c)(3). See id. On September 17, 2024, the Defendants filed an 5 Answer to Plaintiff’s Complaint. ECF No. 19. 6 DISCUSSION 7 Plaintiff asks the Court to appoint him counsel because he is unable to “litigate a 1983 8 civil suit from the confines of the Alameda County Jail or any other penal institution the Plaintiff 9 may be housed.” Mot. at 2. Nonetheless, “[t]here is no constitutional right to appointed counsel 10 in a § 1983 action.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. 11 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); see also Hedges v. Resolution Trust Corp. (In 12 re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (“[T]here is no absolute right to counsel in civil 13 proceedings.”) (citation omitted). Federal courts do not have the authority “to make coercive 14 appointments of counsel.” Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see 15 also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). 16 Districts courts do have discretion pursuant to 28 U.S.C. § 1915(e)(1) to “request” that 17 an attorney represent indigent civil litigants upon a showing of “exceptional circumstances.” See 18 Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d 19 at 1525. A finding of exceptional circumstances requires “an evaluation of the likelihood of the 20 plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his claims 21 ‘in light of the complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting 22 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 23 F.2d 1015, 1017 (9th Cir. 1991). 24 The Court agrees that trained counsel might be better suited to present evidence on his 25 behalf and to defend his interests. Indeed, any pro se litigant “would be better served with the 26 assistance of counsel.” Rand, 113 F.3d at 1525 (citing Wilborn, 789 F.2d at 1331). However, so 27 long as a pro se litigant, like Plaintiff in this case, is able to “articulate his claims against the 1 ||appointment of counsel do not exist. Id. (finding no abuse of discretion under 28 U.S.C. 2 ||§ 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner 3 ||“may well have fared better—particularly in the realms of discovery and the securing of expert 4 || testimony.”). 5 Plaintiff bases his request for counsel on the fact that he is temporarily housed in the 6 ||Alameda County Jail and has limited access to a law library. Mot. at 2. However, recently 7 Defendants sought to modify the Court’s scheduling order to allow more time for discovery to 8 completed after Plaintiff returned to the custody of the California Department of Corrections 9 || and Rehabilitation (“CDCR”). See ECF No. 25. This request was granted by this Court. See ECF 10 26. A review of the Court’s docket also demonstrates that despite Plaintiff's current housing 11 the Alameda County Jail, he has been propounding discovery on Defendants without the 12 || assistance of counsel. See ECF No. 23. 13 Thus, at least at this initial pleading stage, the Court finds Plaintiff appears to have an 14 || adequate grasp of the facts supporting his excessive force claims, which are common to prison 15 || litigation and relatively straightforward. See Terrell, 935 F.2d at 1017; Johnson v. Gentry, 2021 16 || WL 9409168, at *2 (D. Nev. July 27, 2021) (noting prisoner’s Eighth Amendment excessive 17 || forces claims are not “legally complex.”). In fact, as discussed above, Plaintiff’s Complaint alleges 18 excessive force claims sufficient to survive the initial screening required by 28 U.S.C. 19 1915(e)(2) and 1915A. Therefore, because he has not satisfied the high standards required 20 || to justify the appointment of counsel under 28 U.S.C. § 1915(e)(1), the Court DENIES □□□□□□□□□□□ 21 || motion without prejudice. 22 IT IS SO ORDERED. 23 24 || Dated: 6/30/2025 lobe Mager 25 Hon. Barbara L. Major United States Maqistrate Judde 26 27 28