Voage v. Dr. Shpaner

• Court: District Court, S.D. California
• Decided: September 22, 2021
• Docket: 3:21-cv-00420
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 Case No.: 21CV420-WQH (BLM) 10 KEVIN VOAGE,

11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 12 v. [ECF No. 18] 13 DR. SHPANER, et. al, 14 Defendants. 15 16 17 18 On September 7, 2021, Plaintiff, a state prisoner proceeding and , 19 submitted a Motion to Appoint Counsel that was received on September 20, 2021. ECF Nos. 17 20 and 18; see also ECF No. 6 (order granting motion to proceed ). In support 21 of his Motion, Plaintiff alleges that (1) he cannot afford a lawyer, (2) he qualifies under the 22 Americans with Disabilities Act and is unable to write or type on his own, (3) he has made “a 23 diligent effort” to find counsel, (4) his case presents novel and complex issues, (5) access to the 24 prison law library is greatly limited and books cannot be checked out for research in cells, (6) 25 he is a layman and untrained in the law, and (7) his imprisonment limits his ability to litigate his 26 case. ECF No. 18 at 1-5. Having considered Plaintiff’s Motion and the applicable law, the Motion 27 is DENIED for the reasons set forth below. 1 LEGAL STANDARD 2 The Constitution provides no right to appointment of counsel in a civil case unless an 3 indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep’t of Soc. 4 Servs., 452 U.S. 18, 25 (1981). However, under 28 U.S.C. § 1915(e)(1), courts are granted 5 discretion to appoint counsel for indigent persons under “exceptional circumstances.” Agyeman 6 v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional 7 circumstances demands at least “an evaluation of the likelihood of the plaintiff’s success on the 8 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity 9 of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 10 1986)). 11 DISCUSSION 12 Thus far, Plaintiff has drafted and submitted several pleadings without the assistance of 13 counsel. See Docket. In addition to the instant Motion, Plaintiff has submitted a Complaint [ECF 14 No. 1], a Motion to Proceed [ECF No. 2], a motion for copies [ECF No. 5], and 15 two motions for extensions of time to respond to Defendants’ motions to dismiss [ECF Nos. 13 16 and 15]. From the Court’s review of these documents, it is clear that Plaintiff is able to articulate 17 the claims of his case. Additionally, there is no indication that the issues are overly complex. 18 While it is too early for the Court to determine Plaintiff’s likelihood of success on the 19 merits, Plaintiff fails to establish the requisite “exceptional circumstances” that would warrant 20 appointment of counsel. A plaintiff is only entitled to appointed counsel if he can show “that 21 because of the complexity of the claims he [is] unable to articulate his positions.” Rand v. 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th 23 Cir. 1998) (en banc); see also Taa v. Chase Home Fin., 2012 WL 507430, at *2 (N.D. Cal. Feb. 24 15, 2012) (noting that plaintiffs’ lack of legal training and poverty did not constitute exceptional 25 circumstances, as these are the types of difficulties many other litigants face in proceeding in 26 pro se); Wilborn, 789 F.2d at 1331 (“If all that was required to establish successfully the 27 complexity of the relevant issues was a demonstration of the need for development of further 1 626 (9th Cir. 1987) (affirming a district court’s denial of request for appointment of counsel 2 || where pleadings demonstrated petitioner had “a good understanding of the issues and the ability 3 || to present forcefully and coherently his contentions”). Plaintiff has not established that this case 4 “exceptional” or that the issues in it are particularly complex. Plaintiff’s arguments regarding 5 disabilities under the Americans with Disabilities Act do not change this analysis. See Jones 6 || v. Kuppinger, 2015 WL 5522290, at *3—*4 (E.D. Cal. Sept. 17, 2015) (“[c]ircumstances common 7 most prisoners, such as a deficient general education, lack of knowledge of the law, mental 8 |{illness and disability, do not in themselves establish exceptional circumstances warranting 9 || appointment of voluntary civil counsel.”); see also Jones v. Stieferman, 2007 WL 4219169, at 10 |} *1 (E.D. Cal., Nov. 29, 2007) (“being disabled and requiring use of a wheelchair to assist with 11 || mobility is not the type of exceptional circumstances which allow the court to request voluntary 12 || assistance of counsel”); Sierra v. CDCR Director, 2019 WL 6790632, at *1 (E.D. Cal., Dec. 12, 13 || 2019) (denying plaintiff's request for counsel on the grounds that he was disabled and bedridden 14 || where “plaintiff has so far demonstrated that he is capable of filing numerous motions and 15 prosecuting this case without the assistance of counsel.”); □□□ □□ United States, 2020 WL 16 || 8619961, at *1 (E.D. Cal., Sept. 21, 2020) (finding that plaintiff’s “argument that he qualifies as 17 || an individual with a disability under the Americans with Disabilities Act (ADA) because he is an 18 insulin dependent diabetic” did not establish the required exceptional circumstances and stating 19 || that “plaintiff's disability status does not automatically require the appointment of counsel.”) 20 Because Plaintiff failed to allege the requisite “exceptional circumstances,” it is not in the 21 || interest of justice to appoint counsel at this time. Accordingly, Plaintiff's Motion for Appointment 22 || of Counsel is DENIED. 23 IT IS SO ORDERED. 24 Dated: 9/22/2021 iy, be He wr 25 Hon. Barbara L. Major United States Maqistrate Judde 26 27 28