Pinson v. Federal Bureau of Prisons ( 2022 )

1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Jeremy Pinson, No. CV-19-00401-TUC-RM 11 Plaintiff, ORDER 12 v. 13 United States of America, 14 Defendant. 15 16 Pending before the Court is Plaintiff’s Motion for Appointment of Counsel. (Doc. 17 61.) Plaintiff requests that she be appointed counsel to assist with the trial in this case 18 pursuant to 28 U.S.C. § 1915(e)(1).1 (Id.) Plaintiff avers that counsel is necessary because 19 (1) the parties engaged in a settlement conference but failed to reach a settlement; (2) 20 Plaintiff has been appointed counsel in other cases; (3) this case involves state law claims 21 and the BOP law library does not cover state law; (4) the case involves multiple 22 witnesses; and (5) Plaintiff has limited access to a law library and litigation materials 23 because she is confined in the Special Housing Unit (SHU). (Id.) 24 Defendant opposes the Motion. (Doc. 63.) Defendant argues that Plaintiff has not 25 shown that exceptional circumstances exist that would entitle her to counsel. (Id.) 26 Defendant argues that (1) Plaintiff can access her legal materials while in the SHU 27 28 1 Plaintiff subsequently filed a Supplement to her Motion stating that the prison is in lockdown and as a result she cannot access the law library or her legal files. (Doc. 64.) 1 through the SHU Property Officer; (2) Plaintiff has not established a need for counsel that 2 is different than any other pro se litigant; (3) Plaintiff is more equipped to litigate this 3 matter to completion than most pro se litigants, as she has previously filed hundreds of 4 lawsuits in federal court; and (4) Plaintiff does not address her likelihood of success on 5 the merits or claim that she is unable to articulate her claims in light of the complexity of 6 the legal issues. (Id.) 7 As set forth in the Court’s summary judgment Order, the sole remaining claim in 8 this action alleges that on September 15, 2020, Officer Vasquez provided Plaintiff with a 9 razor, in violation of Arizona negligence law applied to the United States through the 10 Federal Tort Claims Act (FTCA). (Doc. 54.) The Order finds that, based on the 11 undisputed facts, a reasonable jury could find that (1) Vasquez had a duty to protect 12 Plaintiff from harm; (2) Vasquez breached that duty by giving Plaintiff an envelope that 13 he knew contained a razor; and (3) Plaintiff suffered actual damages from cutting herself 14 with the razor. (Id. at 10-11.) The Order further finds that a question of fact remains as to 15 whether Vasquez’s provision of the razor was a but-for cause of Plaintiff’s injuries. (Id. at 16 11-12.) The Order further finds that a jury could find that it was reasonably foreseeable to 17 Vasquez that giving a razor to a prisoner in the SHU, where razors are prohibited, would 18 create an unreasonable risk of harm to inmates. (Id. at 12-13.) Thus, because a reasonable 19 jury could find that providing Plaintiff a razor in the SHU breached Officer Vasquez’s 20 duty of care, and this breach was both the but-for and proximate cause of Plaintiff’s 21 injuries, the Court denied summary judgment as to Plaintiff’s FTCA claim based on 22 Vasquez’s alleged negligence. (Id. at 13.) 23 There is no constitutional right to the appointment of counsel in a civil case. See 24 Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In 25 proceedings in forma pauperis, the court may request an attorney to represent any person 26 unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 27 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v. 28 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional 1 circumstances requires an evaluation of the likelihood of success on the merits as well as 2 the ability of Plaintiff to articulate her claims pro se in light of the complexity of the legal 3 issue involved. Id. “Neither of these factors is dispositive and both must be viewed 4 together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 5 1331 (9th Cir. 1986)). 6 Plaintiff’s arguments regarding appointment of counsel do not address either 7 factor. She does not present a position on the likelihood of her success on the merits. 8 Although the remaining claim is now past the summary judgment stage, this alone weighs 9 neither for nor against the likelihood of Plaintiff’s success on the merits. Nor does 10 Plaintiff present a position on her ability to articulate her claims in light of the complexity 11 of the legal issues. Although Plaintiff states that she has limited access to legal research 12 and materials while incarcerated in the SHU, she does not contend that the legal matters 13 at issue are so complex that she is unable to litigate them. Given Plaintiff’s history of 14 federal court litigation and her ability to articulate her claims thus far in this lawsuit, this 15 factor weighs against appointment of counsel. Furthermore, courts have not found that 16 the typical impediments faced by incarcerated pro se plaintiffs constitute exceptional 17 circumstances entitling them to appointment of counsel. See Palmer v. Valdez, 560 F.3d 18 965, 970 (9th Cir. 2009) (appellate court upheld district court’s denial of counsel where 19 district court ensured before trial that incarcerated pro se plaintiff had access to his legal 20 documents and made accommodations for his medical condition); Mahoney v. Kitsap 21 Cnty. Jail, No. C10-5140 RBL/KLS, 2010 WL 3239318, at *1 (W.D. Wash. Aug. 16, 22 2010) (denying appointment of counsel where plaintiff was subject to prison lockdowns, 23 lacked legal skills, and suffered from medical conditions); Ortega v. CSP-SAC Prison 24 Offs., No. CIV. 208-00588 SOM, 2010 WL 2598228, at *2 (D. Haw. June 7, 2010) 25 (multiple defendants, expert testimony, conflicting testimony, a demand for a jury trial, 26 limited access to legal materials, and limited legal knowledge did not make a case 27 complex). 28 1 Because Plaintiff has not shown that exceptional circumstances warrant the 2 || appointment of counsel for trial in this matter, the Motion will be denied. 3 IT IS ORDERED that Plaintiff's Motion for Appointment of Counsel (Doc. 61) 4|| is denied. 5 Dated this 1** day of December, 2022. 6 7 8 — Dll , fe 9 nr Q/) Honorable Rosthary Mafquez 10 United States District Iidge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-