(PC)Spears v. Chang ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN LOUIS SPEARS, Case No.: 1:22-cv-00726 SKO (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 v. FOR APPOINTMENT OF COUNSEL 14 FRANK CHANG, (Doc. 2.) 15 Defendant. 16 17 Plaintiff John Louis Spears is proceeding pro se and in forma pauperis in this civil rights 18 action brought pursuant to 42 U.S.C. § 1983. 19 I. INTRODUCTION 20 On June 2, 2022, Plaintiff filed a Motion for Appointment of Counsel. (Doc. 2.) He 21 contends the “interests of justice” support his request for the following reasons: (1) due to his 22 incarceration, Plaintiff is restricted in “his ability to effectively litigate” the action due to COVID- 23 19, resulting in limited access to the law library; (2) an attorney “can do things” Plaintiff cannot, 24 including “access, research, making appearances, trial preparations, interviewing witnesses, 25 defendant(s), other investigative strategies, and, lastly, the complexity of the case;” (3) the 26 “permanent loss of [Plaintiff’s] finger has created many disadvantages” including being unable 27 “to grip a pen or pencil without being in pain,” limiting his “ability to write or type” and requiring 1 expose [him] to dangers unseen;” (4) Plaintiff suffers from PTSD, night terrors, depression and 2 anxiety, making it difficult to “truly concentrate and do the task at hand”; (5) a trial will “involve 3 conflicting testimony and counsel would better enable plaintiff to present evidence and cross 4 examine witnesses.” (Id. at 1-2.) Plaintiff asks the Court to appoint counsel “from the California 5 Pro Bono Project.” (Id. at 2.) 6 II. DISCUSSION 7 Plaintiffs do not have a constitutional right to appointed counsel in § 1983 actions. Rand v. 8 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 9 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 U.S.C. § 10 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 11 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 12 to section 1915(e)(1). Rand, 113 F.3d at 1525. 13 Given that the Court has no reasonable method of securing and compensating counsel, the 14 Court will seek volunteer counsel only in extraordinary cases. In determining whether 15 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 16 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 17 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 18 citations omitted). 19 In the present case, the Court does not find the required exceptional circumstances. Even 20 assuming Plaintiff is not well versed in the law and has made serious allegations that, if proven, 21 would entitle him to relief, Plaintiff’s case is not exceptional. The Court is faced with similar 22 cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se 23 status and his incarceration, the test is not whether Plaintiff would benefit from the appointment 24 of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The test is whether 25 exceptional circumstances exist; here, they do not. Indeed, circumstances common to most 26 prisoners, such as lack of legal education and limited law library access, do not establish 27 exceptional circumstances that would warrant a request for voluntary assistance of counsel. In 1 serious medical needs following an incident on February 2, 2017, wherein Plaintiff’s “finger was 2 severed in an accident” and his finger could not be reattached because the treating physician at 3 the prison facility did not properly store and preserve the amputated finger. (Doc. 1.) While 4 perhaps unusual, Plaintiff’s case is simply not one involving exceptional circumstances. 5 At this stage in the proceedings, the Court cannot determine whether Plaintiff is likely to 6 succeed on the merits because his complaint has not yet been screened. 28 U.S.C. § 1915A. 7 Nevertheless, based on a review of the record in this case, the Court does not find that Plaintiff 8 cannot adequately articulate his claims. 9 To the extent Plaintiff’s access to the law library is restricted due to COVID-19, the Court 10 will entertain motions for additional time to comply with deadlines in this case, for good cause 11 shown. Such restrictions, however, are not a basis for the appointment of counsel. See, e.g., 12 Faultry v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal., May 20, 2020) (stating that 13 “[c]ircumstances common to most prisoners, such as lack of legal education and limited law 14 library access, do not establish exceptional circumstances supporting appointment of counsel” 15 and noting that the “impacts of the COVID-19 health crisis on prison operations are also common 16 to all prisoners”); Snowden v. Yule, 2020 WL 2539229, at *1 (E.D. Cal., May 19, 2020) (noting 17 that “limited access to the prison law library and resources, particularly during the current 18 COVID-19 health crisis” is a circumstance that plaintiff shares with many other prisoners). 19 Regarding Plaintiff’s contention that PTSD, night terrors, depression and anxiety 20 necessitate the appointment of counsel, those circumstances do not change the analysis. See Jones 21 v. Kuppinger, 2015 WL 5522290, at *3–*4 (E.D. Cal. Sept. 17, 2015) (“[c]ircumstances common 22 to most prisoners, such as a deficient general education, lack of knowledge of the law, mental 23 illness and disability, do not in themselves establish exceptional circumstances warranting 24 appointment of voluntary civil counsel”); Jones v. Stieferman, 2007 WL 4219169, at *1 (E.D. 25 Cal., Nov. 29, 2007) (“being disabled and requiring use of a wheelchair to assist with mobility is 26 not the type of exceptional circumstances which allow the court to request voluntary assistance of 27 counsel”); see also Fletcher v. Quin, No. 15CV2156-GPC (NLS), 2018 WL 840174, at *2 (S.D. 1 by “substantial evidence of incompetence”); McElroy v. Cox, Civil No. 08-1221-JM (AJB), 2009 2 WL 4895360 at *2 (E.D. Cal. Dec. 11, 2009). 3 The fact that an attorney may be better able to perform research, investigate, and prepare 4 for and represent Plaintiff at trial, again, does not change the analysis. There is little doubt most 5 pro se litigants “find it difficult to articulate [their] claims,” and would be better served with the 6 assistance of counsel. Wilborn, 789 F.2d at 1331. For this reason, in the absence of counsel, 7 federal courts employ procedures which are highly protective of a pro se litigant's rights. See 8 Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) 9 (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court must construe 10 the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim–Panahi v. Los 11 Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is 12 “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 13 1992). Thus, where a pro se litigant can “articulate his claims” in light of the relative complexity 14 of the matter, the “exceptional circumstances” which might require the appointment of counsel do 15 not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 16 Here, Plaintiff’s complaint adequately articulates his Eighth Amendment deliberate indifference 17 claim against a single defendant. 18 Finally, as to Plaintiff's physical limitations, Plaintiff has not presented evidence that these 19 limitations impede his ability to litigate this case. A review of Plaintiff’s complaint reveals “an 20 amputation of his distal phalanx on the left middle finger distal to the DIP. … The amputated 21 distal fingertip measures 2 cm in length with the entire nail bed within the fragment.” (Doc. 1 at 22 6-7.) While Plaintiff’s amputated fingertip may be sensitive and painful, there is no evidence 23 Plaintiff’s disability prevents him from articulating his claim. Further, Plaintiff acknowledges the 24 availability of assistance from another inmate and/or ADA worker and can adequately articulate 25 his claims with that assistance. See Montano v. Solomon, No. 2:07-CV-0800 KJN P, 2010 WL 26 4137476, at *7 (E.D. Cal. Oct. 19, 2010) (denying indigent plaintiff's motion for appointment of 27 counsel as failing to present an exceptional circumstance under 28 U.S.C. § 1915(e)(1) where 1 of this case ... as well as the matters now before the court”). 2 Plaintiff’s contention that those individuals “create a liability that can and will expose 3 [him] to dangers unseen,” (Doc. 2 at 1-2), is speculative and defies common sense. Plaintiff does 4 not explain how another inmate or an ADA worker’s assistance would “create a liability” or 5 present “dangers unseen,” particularly where those individuals are presumably assisting Plaintiff 6 by writing or typing documents at Plaintiff’s direction, rather than authoring the documents 7 themselves. 8 III. CONCLUSION AND ORDER 9 For the reasons set forth above, Plaintiff’s motion for the appointment of counsel (Doc. 2) 10 is DENIED. 11 IT IS SO ORDERED. 12 13 Dated: July 7, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27