1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Jonquil THOMAS-WEISNER, Case No.: 19-cv-01999-JAH-BGS
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR APPOINTMNT OF COUNSEL 14 Connie GIPSON, et al.,
15 Defendants. [ECF No. 27]
18 Plaintiff Jonquil Thomas-Weisner is a state prisoner proceeding in forma pauperis 19 (“IFP”) and pro se in this civil rights action filed pursuant to the Civil Rights Act, 42 U.S.C. 20 § 1983. Plaintiff’s Motion for Appointment of Counsel is currently pending before the 21 Court. (ECF No. 27.) Specifically, Plaintiff filed form titled “Request for Appointment of 22 Counsel Under The Civil Rights Act of 1964, 42 U.S.C. 2000e 5(f)(1); Declaration in 23 Support of Request[.]” (Id. at 1.) In support of his request, Plaintiff’s request represented 24 that (1) his claim is meritorious, (2) he has made a reasonably diligent effort to obtain 25 counsel, and (3) he was unable to find an attorney willing to represent him on terms that 26 he can afford. (Id. at 1.) Further, Plaintiff indicated that he has not made an effort to make 27 28 1 contact with an attorney “due to the lack of resources from incarceration” and is “unable 2 to pay for [an] attorney.” (Id. at 3.) 3 Plaintiff seeks appointment of counsel pursuant to 42 U.S.C. § 2000e–5. (Id. at 1.) 4 “This statute, however, concerns appointment of counsel in employment discrimination 5 matters.” Moore v. Greyhound Bus Lines, Inc., No. 15-CV-1186-CAB (MDD), 2016 WL 6 10676103, at *1 (S.D. Cal. Feb. 5, 2016). Since Plaintiff’s Second Amended Complaint 7 did not assert any employment discrimination claims, 42 U.S.C. § 2000e–5 does not apply 8 here. 9 Regardless, “[t]here is no absolute right to counsel in civil proceedings.” Hedges v. 10 Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994); Palmer v. Valdez, 560 F.3d 11 965, 970 (9th Cir. 2009). Further, there is no constitutional right to a court-appointed 12 attorney in section 1983 claims. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) 13 (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)). District Courts have 14 discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to “request” that an attorney 15 represent indigent civil litigants upon a showing of exceptional circumstances. See 16 Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); see also Terrell v. 17 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. Cty. of King, 883 F.2d 819, 823 (9th 18 Cir. 1989); Palmer, 560 F.3d at 970. “A finding of exceptional circumstances requires an 19 evaluation of both the ‘likelihood of success on the merits and the ability of the plaintiff to 20 articulate his claims pro se in light of the complexity of the legal issues involved.’” Terrell, 21 935 F.2d at 1017 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 22 “Neither of these issues is dispositive and both must be viewed together before making a 23 decision.” Id. 24 Plaintiff requested that the court appoint him an attorney because he is unable to 25 afford a lawyer. (ECF No. 27 at 3.) However, this alone does not entitle Plaintiff to the 26 appointment of counsel. See Thornton, 2011 WL 90320, at *6 (“First, [plaintiff] repeats 27 his assertion that he cannot afford counsel by referring to his request to proceed in forma 28 1 pauperis. [. . .] Even though he was granted in forma pauperis status [. . .], his argument is 2 not persuasive because indigence alone does not entitle a plaintiff to appointed counsel.”). 3 Notwithstanding, the Court has discretion in requesting an attorney to represent 4 Plaintiff upon a showing of exceptional circumstances. See Agyeman, 390 F.3d at 1103 5 (citing Wilborn, 789 F.2d at 1331); Thornton, 2011 WL 90320, at *3 (“But even after a 6 plaintiff [establishes that he is indigent], ‘he is entitled to appointment of counsel only if 7 he can [also] show exceptional circumstances.’”). In determining whether exceptional 8 circumstances are present, the Court will evaluate (1) Plaintiff’s likelihood of success on 9 the merits and (2) Plaintiff’s ability to articulate his claims pro se in light of the complexity 10 of the legal issues involved. See id. The Court address each issue in turn. 11 I. Likelihood of Plaintiff’s Success on the Merits 12 Despite the statement that “my claim is meritorious” (ECF No. 27 at 1), Plaintiff 13 offered no argument or evidence to the effect that he has a likelihood of success on the 14 merits in support of his motion. And when a Plaintiff provides no evidence of his 15 likelihood of success at trial, he fails to satisfy the first factor of the Wilborn test. See, e.g., 16 Eusse v. Vitela, No. 3:13-CV-00916-BEN, 2015 WL 4404865, at *2 (S.D. Cal. July 2015) 17 (holding that the plaintiff failed to satisfy the first Wilborn factor by not providing any 18 evidence aside from his own assertions regarding the likelihood of success on the merits); 19 Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) (finding that the plaintiff failed 20 to satisfy the first Wilborn factor where he offered “no evidence other than his own 21 assertions to support his claims.”). Although Plaintiff’s Complaint survived screening 22 based on the facts alleged, those allegations present only one view of the case and does not 23 demonstrate a likelihood of success on the merits. See, e.g., Williams v. Ortega, No. 24 18CV547-LAB-MDD, 2020 WL 6807410, at *2 (S.D. Cal. Oct. 2020) (“The Court notes 25 that Plaintiff’s claims are not particularly complex, and although sufficient to survive 26 screening, Plaintiff has not demonstrated a likelihood of success on the merits.”); Medrano 27 v. Ortega, No. 319CV00423-AJB-MDD, 2019 WL 2191348, at *3 (S.D. Cal. May 2019) 28 (denying appointment of counsel when it was too early to determine whether here is a 1 likelihood of success on the merits despite surviving the initial screening). Therefore, 2 without any evidence supporting a likelihood of success on the merits, the Court concludes 3 that Plaintiff has failed to satisfy the first Wilborn factor. 4 II. Plaintiff’s ability to articulate his claims pro se 5 Where a pro se civil rights plaintiff shows that he has a good grasp of basic litigation 6 procedure and has been able to articulate his claims adequately, he does not demonstrate 7 the exceptional circumstances required for the appointment of counsel. See Palmer v. 8 Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Eusse, 2015 WL 4404865, at *2 (“[W]here a 9 pro se civil litigant shows he has a good grasp of basic court procedure and sets forth the 10 factual and legal basis for his claims in a straightforward manner, he is not entitled to court- 11 appointed counsel.”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Jonquil THOMAS-WEISNER, Case No.: 19-cv-01999-JAH-BGS
12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR APPOINTMNT OF COUNSEL 14 Connie GIPSON, et al.,
15 Defendants. [ECF No. 27]
18 Plaintiff Jonquil Thomas-Weisner is a state prisoner proceeding in forma pauperis 19 (“IFP”) and pro se in this civil rights action filed pursuant to the Civil Rights Act, 42 U.S.C. 20 § 1983. Plaintiff’s Motion for Appointment of Counsel is currently pending before the 21 Court. (ECF No. 27.) Specifically, Plaintiff filed form titled “Request for Appointment of 22 Counsel Under The Civil Rights Act of 1964, 42 U.S.C. 2000e 5(f)(1); Declaration in 23 Support of Request[.]” (Id. at 1.) In support of his request, Plaintiff’s request represented 24 that (1) his claim is meritorious, (2) he has made a reasonably diligent effort to obtain 25 counsel, and (3) he was unable to find an attorney willing to represent him on terms that 26 he can afford. (Id. at 1.) Further, Plaintiff indicated that he has not made an effort to make 27 28 1 contact with an attorney “due to the lack of resources from incarceration” and is “unable 2 to pay for [an] attorney.” (Id. at 3.) 3 Plaintiff seeks appointment of counsel pursuant to 42 U.S.C. § 2000e–5. (Id. at 1.) 4 “This statute, however, concerns appointment of counsel in employment discrimination 5 matters.” Moore v. Greyhound Bus Lines, Inc., No. 15-CV-1186-CAB (MDD), 2016 WL 6 10676103, at *1 (S.D. Cal. Feb. 5, 2016). Since Plaintiff’s Second Amended Complaint 7 did not assert any employment discrimination claims, 42 U.S.C. § 2000e–5 does not apply 8 here. 9 Regardless, “[t]here is no absolute right to counsel in civil proceedings.” Hedges v. 10 Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994); Palmer v. Valdez, 560 F.3d 11 965, 970 (9th Cir. 2009). Further, there is no constitutional right to a court-appointed 12 attorney in section 1983 claims. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) 13 (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)). District Courts have 14 discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to “request” that an attorney 15 represent indigent civil litigants upon a showing of exceptional circumstances. See 16 Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); see also Terrell v. 17 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. Cty. of King, 883 F.2d 819, 823 (9th 18 Cir. 1989); Palmer, 560 F.3d at 970. “A finding of exceptional circumstances requires an 19 evaluation of both the ‘likelihood of success on the merits and the ability of the plaintiff to 20 articulate his claims pro se in light of the complexity of the legal issues involved.’” Terrell, 21 935 F.2d at 1017 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 22 “Neither of these issues is dispositive and both must be viewed together before making a 23 decision.” Id. 24 Plaintiff requested that the court appoint him an attorney because he is unable to 25 afford a lawyer. (ECF No. 27 at 3.) However, this alone does not entitle Plaintiff to the 26 appointment of counsel. See Thornton, 2011 WL 90320, at *6 (“First, [plaintiff] repeats 27 his assertion that he cannot afford counsel by referring to his request to proceed in forma 28 1 pauperis. [. . .] Even though he was granted in forma pauperis status [. . .], his argument is 2 not persuasive because indigence alone does not entitle a plaintiff to appointed counsel.”). 3 Notwithstanding, the Court has discretion in requesting an attorney to represent 4 Plaintiff upon a showing of exceptional circumstances. See Agyeman, 390 F.3d at 1103 5 (citing Wilborn, 789 F.2d at 1331); Thornton, 2011 WL 90320, at *3 (“But even after a 6 plaintiff [establishes that he is indigent], ‘he is entitled to appointment of counsel only if 7 he can [also] show exceptional circumstances.’”). In determining whether exceptional 8 circumstances are present, the Court will evaluate (1) Plaintiff’s likelihood of success on 9 the merits and (2) Plaintiff’s ability to articulate his claims pro se in light of the complexity 10 of the legal issues involved. See id. The Court address each issue in turn. 11 I. Likelihood of Plaintiff’s Success on the Merits 12 Despite the statement that “my claim is meritorious” (ECF No. 27 at 1), Plaintiff 13 offered no argument or evidence to the effect that he has a likelihood of success on the 14 merits in support of his motion. And when a Plaintiff provides no evidence of his 15 likelihood of success at trial, he fails to satisfy the first factor of the Wilborn test. See, e.g., 16 Eusse v. Vitela, No. 3:13-CV-00916-BEN, 2015 WL 4404865, at *2 (S.D. Cal. July 2015) 17 (holding that the plaintiff failed to satisfy the first Wilborn factor by not providing any 18 evidence aside from his own assertions regarding the likelihood of success on the merits); 19 Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) (finding that the plaintiff failed 20 to satisfy the first Wilborn factor where he offered “no evidence other than his own 21 assertions to support his claims.”). Although Plaintiff’s Complaint survived screening 22 based on the facts alleged, those allegations present only one view of the case and does not 23 demonstrate a likelihood of success on the merits. See, e.g., Williams v. Ortega, No. 24 18CV547-LAB-MDD, 2020 WL 6807410, at *2 (S.D. Cal. Oct. 2020) (“The Court notes 25 that Plaintiff’s claims are not particularly complex, and although sufficient to survive 26 screening, Plaintiff has not demonstrated a likelihood of success on the merits.”); Medrano 27 v. Ortega, No. 319CV00423-AJB-MDD, 2019 WL 2191348, at *3 (S.D. Cal. May 2019) 28 (denying appointment of counsel when it was too early to determine whether here is a 1 likelihood of success on the merits despite surviving the initial screening). Therefore, 2 without any evidence supporting a likelihood of success on the merits, the Court concludes 3 that Plaintiff has failed to satisfy the first Wilborn factor. 4 II. Plaintiff’s ability to articulate his claims pro se 5 Where a pro se civil rights plaintiff shows that he has a good grasp of basic litigation 6 procedure and has been able to articulate his claims adequately, he does not demonstrate 7 the exceptional circumstances required for the appointment of counsel. See Palmer v. 8 Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Eusse, 2015 WL 4404865, at *2 (“[W]here a 9 pro se civil litigant shows he has a good grasp of basic court procedure and sets forth the 10 factual and legal basis for his claims in a straightforward manner, he is not entitled to court- 11 appointed counsel.”). As another court in this district noted, there is “no doubt [that] most 12 pro se litigants find it difficult to articulate their claims and would be better served with 13 the assistance of counsel.” Garcia v. Cal. Dep’t of Corrections & Rehab., No. 12CV1084- 14 IEG-KSC, 2013 WL 485756, at *1 (S.D. Cal. Feb. 2013). However, whether a litigant 15 would have fared better with or without counsel is not the test for appointment of counsel. 16 Thornton v. Schwarzenegger, No. 10CV01583-BTM-RBB, 2010 WL 3910446, at *5 (S.D. 17 Cal. Oct. 2010). It is for this reason that federal courts employ procedures that protect a 18 pro se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972). In pro se civil 19 rights cases, a court must construe the pleadings liberally and afford the plaintiff any 20 benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th 21 Cir. 1988). Thus, where a pro se plaintiff can articulate his claims in light of their relative 22 complexity, there are no exceptional circumstances to justify appointment of counsel. 23 Garcia, 2013 WL 485756, at *1 (citing Wilborn, 789 F.2d at 1331). 24 In this case, Plaintiff contends that Defendant Patrick Covello and Defendant Lance 25 Eshelman (“Defendants”) violated the First Amendment’s Free Exercise Clause by 26 removing him from his Religious Meat Alternative (“RMA”) diet after an alleged violation 27 without providing an initial warning before removal. (ECF No. 26.) 28 1 After reviewing the Second Amended Complaint and other pleadings, the Court 2 finds that the issues Plaintiff raises are not particularly complex. The Court also 3 understands Plaintiff’s claims and the relief sought. Further, Plaintiff demonstrated a good 4 grasp on basic litigation procedure, as evidenced by his ability to state a claim in his 5 original complaint as well as his two amended complaints, his ability to attach exhibits to 6 his complaints, his ability to properly fill out and serve the summons, his Motion for Leave 7 to Proceed in forma pauperis, and his Motion for Appointment of Counsel. (See ECF Nos. 8 1, 2, 3, 12, 15, 18, 24, 26.) These filings suggest that the Plaintiff can adequately navigate 9 the legal process. See Thornton v. Schwarzenegger, No. 10CV01583-BTM-RBB, 2011 10 WL 90320, at *6 (S.D. Cal. Jan. 2011) (citing Plummer v. Grimes, 87 F.3d 1032, 1033 (8th 11 Cir.1996) (finding the district court did not abuse its discretion in denying plaintiff counsel, 12 in part because plaintiff adequately filed a complaint and other pretrial materials)). 13 The circumstances cited by Plaintiff are typical of almost every pro se prisoner civil 14 rights plaintiff and alone are insufficient to demonstrate the “exceptional circumstance” 15 required to justify appointment of counsel. See, e.g., Wood v. Housewright, 900 F.2d 1332, 16 1335–36 (9th Cir. 1990) (upholding denial of appointment of counsel where plaintiff 17 complained that he had limited access to law library and lacked a legal education); Marquez 18 v. United States, No. 318CV00434CABNLS, 2018 WL 3388098, at *3 (S.D. Cal. July 12, 19 2018) (“[M]any of Plaintiff’s assertions, such as limited education, no legal training, and 20 limited access to the law library, are issues common to many prisoners and do not amount 21 to exceptional circumstances.”); Galvan v. Fox, No. 2:15-CV-01798-KJM-DB, 2017 WL 22 1353754, at *8 (E.D. Cal. Apr. 2017) (“Circumstances common to most prisoners, such as 23 lack of legal education and limited law library access, do not establish exceptional 24 circumstances that warrant a request for voluntary assistance of counsel.”); Jones v. 25 Kuppinger, 2:13-CV-0451 WBS AC, 2015 WL 5522290, at *3–*4 (E.D. Cal. Sept. 17, 26 2015) (“Circumstances common to most prisoners, such as a deficient general education, 27 lack of knowledge of the law, mental illness and disability, do not in themselves establish 28 exceptional circumstances warranting appointment of voluntary civil counsel.”); Eusse, 1 WL 4404865, at *2 (“[T]hese discovery concerns, as well as Plaintiff's limited access 2 ||to the prison library, do not present “exceptional circumstances,” but rather illustrate the 3 || difficulties any prisoner would have litigating pro se.”). 4 In sum, the Court finds that Plaintiff is sufficiently able to articulate his claims pro 5 || se, given the complexity of the issues involved, and concludes that Plaintiff has failed to 6 || satisfy the second Wilborn factor. 7 |. CONCLUSION 8 Accordingly, the Court does not find exceptional circumstances warranting the 9 || appointment of counsel at this time. Plaintiff's Motion for Appointment of Counsel (ECF 10 || No. 27) is DENIED without prejudice. 11 IT ISSO ORDERED. 12 Dated: February 16, 2022 : p / / 13 on. Bernard G. Skomal 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28