Moore v. Lankford ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 19CV2406-DMS (BLM) 11 ROBERT MOORE, 12 Plaintiff, ORDER DENYING PLAINTIFF’S SECOND MOTION FOR APPOINTMENT 13 v. OF COUNSEL 14 JOE LANKFORD, MERCEDES ARELLANO, R. [ECF No. 26] BUCKEL, AND DAVID STROMSKI, 15 Defendants. 16 17 18 19 On June 30, 2020, Plaintiff, a state prisoner proceeding and , 20 submitted a Motion for Appointment of Counsel that was received on July 6, 2020. ECF Nos. 19 21 and 20; see also ECF No. 6 (order granting motion to proceed ). Plaintiff 22 argued that (1) he was “unable to afford counsel,” (2) his imprisonment limited his ability to 23 litigate his case, and (3) “counsel would better enable plaintiff to present evidence and cross 24 examine witnesses.” ECF No. 20 at 1-2. On July 9, 2020, the Court denied Plaintiff’s motion for 25 failing to allege exceptional circumstances. ECF No. 21. 26 On August 16, 2020, Plaintiff submitted a second motion for appointment of counsel that 27 was received on August 21, 2020 and accepted on discrepancy on September 4, 2020. ECF 28 Nos. 24 & 26. In support of his motion, Plaintiff argues that (1) this is a complex matter involving 1 several different legal claims, medical issues, and defendants, (2) he has demanded a jury trial, 2 (3) expert testimony will be required, (4) conflicting testimony is likely, (5) he only has a high 3 school diploma and no legal education, and (6) due to COVID-19 he has been unable to access 4 the law library. ECF No. 26 at 3-9. Having considered Plaintiff’s Motion and the applicable law, 5 the Motion is DENIED for the reasons set forth below. 6 LEGAL STANDARD 7 As Plaintiff is aware from the Court’s previous order, the Constitution provides no right to 8 appointment of counsel in a civil case unless an indigent litigant may lose his physical liberty if 9 he loses the litigation. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981). However, under 10 28 U.S.C. § 1915(e)(1), courts are granted discretion to appoint counsel for indigent persons 11 under “exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th 12 Cir. 2004). A finding of exceptional circumstances demands at least “an evaluation of the 13 likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to 14 articulate his claims ‘in light of the complexity of the legal issues involved.’” Id. (quoting Wilborn 15 v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 16 DISCUSSION 17 Thus far, Plaintiff has drafted and submitted several pleadings without the assistance of 18 counsel. See Docket. In addition to the instant Motion, Plaintiff has submitted a Complaint [ECF 19 No. 1], a Prisoner Trust Fund Account Statement [ECF No. 2], a Motion for Extension of Time to 20 File a Motion to Proceed [ECF No. 4], a Motion to Proceed 21 [ECF No. 5], a Motion to Amend the Complaint [ECF No. 14], a Motion for Appointment of 22 Counsel [ECF No. 20], Exhibits [ECF No. 23], and a Motion to Compel Discovery [ECF No. 27]. 23 From the Court’s review of these documents, it is clear that Plaintiff is able to articulate the 24 claims of his case. Additionally, there is no indication that the issues are overly complex. 25 While it is too early for the Court to determine Plaintiff’s likelihood of success on the 26 merits, Plaintiff fails to establish the requisite “exceptional circumstances” that would warrant 27 appointment of counsel. A plaintiff is only entitled to appointed counsel if he can show “that 28 because of the complexity of the claims he [is] unable to articulate his positions.” Rand v. 1 ||Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th 2 1998) (en banc); see also Taa v. Chase Home Fin., 2012 WL 507430, at *2 (N.D. Cal. Feb. 3 2012) (noting that plaintiffs’ lack of legal training and poverty did not constitute exceptional 4 circumstances, as these are the types of difficulties many other litigants face in proceeding in 5 || pro se); Wilborn, 789 F.2d at 1331 (“If all that was required to establish successfully the 6 ||complexity of the relevant issues was a demonstration of the need for development of further 7 || facts, practically all cases would involve complex issues.”); see also LaMere v. Risley, 827 F.2d 8 626 (9th Cir. 1987) (affirming a district court’s denial of request for appointment of counsel 9 || where pleadings demonstrated petitioner had “a good understanding of the issues and the ability 10 || to present forcefully and coherently his contentions”). Plaintiff has not established that this case 11 “exceptional”! or that the issues in it are particularly complex. 12 Because Plaintiff failed to allege the requisite “exceptional circumstances,” it is not in the 13 interest of justice to appoint counsel at this time. Accordingly, Plaintiff's Motion for Appointment 14 || of Counsel is DENIED. 15 IT 1S SO ORDERED. 16 ||Dated: 9/8/2020 lxirbee Mager 17 Hon. Barbara L. Major United States Maaistrate Judae 18 19 20 21 22 93 1 Plaintiff's argument regarding library access due to COVID-19 also fails to establish an exceptional circumstance. See Faultry v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal., May 20, 24 || 2020) (stating that “[c]ircumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances supporting 25 appointment of counsel” and noting that the “impacts of the COVID-19 health crisis on prison % operations are also common to all prisoners”); see also Snowden v. Yule, 2020 WL 2539229, at *1 (E.D. Cal., May 19, 2020) (noting that “limited access to the prison law library and resources, 27 || particularly during the current COVID-19 health crisis” is a circumstance that plaintiff shares with many other prisoners). 28