Lopez v. Ko ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADAM REY LOPEZ, Case No.: 3:20-cv-2236-CAB (NLS) 12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 SAMUEL KO; MAJA BOYD, [ECF No. 20] 15 Defendants. 16 17 Before the Court is Plaintiff’s motion for appointment of counsel. ECF No. 20. 18 Plaintiff is a prisoner, proceeding pro se and in forma pauperis, and has filed a civil 19 complaint alleging civil rights violations. ECF No. 1. Plaintiff was previously denied 20 counsel. ECF No. 5. Plaintiff now seeks appointment of counsel specifically for 21 discovery. 22 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 23 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). In pro se and in 24 forma pauperis proceedings, district courts do not have the authority “to make coercive 25 appointments of counsel.” Mallard v. United States District Court, 490 U.S. 296, 310 26 (1989). But they do have discretion to request that an attorney represent indigent civil 27 litigants upon a showing of “exceptional circumstances.” 28 U.S.C. § 1915(e)(1); 28 Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A finding of 1 exceptional circumstances requires an evaluation of both the ‘likelihood of success on the 2 merits and the ability of the plaintiff to articulate his claims pro se in light of the 3 complexity of the legal issues involved.’ Neither of these issues is dispositive and both 4 must be viewed together before reaching a decision.” Terrell v. Brewer, 935 F.2d 1015, 5 1017 (9th Cir. 1991) (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 6 1986)). 7 As to the merits of this case, Plaintiff does not provide any statement or reasoning as 8 to why his claims are meritorious. Therefore, Plaintiff fails to satisfy the first factor of 9 the Wilborn test. At this time, the case is still in early stages, as discovery has not been 10 completed. When the parties have not yet completed discovery and have not presented 11 evidence to the Court in support of their claims and defenses, the Court cannot find that 12 Plaintiff is likely to succeed on the merits of his claims. See Garcia v. Smith, No. 10- 13 cv1187-AJB (RBB), 2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) (denying motion 14 for appointment of counsel when it was too early to determine whether any of plaintiff’s 15 claims would survive a motion for summary judgment). Without any additional evidence 16 supporting a likelihood of success on the merits, Plaintiff has not satisfied the first 17 Wilborn factor. 18 As to the ability of Plaintiff to articulate his claims, Plaintiff relies on the 19 complexity of discovery required. ECF No. 20 at 1-2. The legal claims in this case are 20 not particularly complex. As mentioned previously, Plaintiff’s claim is a typical 21 conditions of confinement claim, which is “relatively straightforward.” Harrington, 785 22 F.3d at 1309. Plaintiff has been able to clearly articulate and understand his claims, as 23 evidenced by his complaint and multiple motions to appoint counsel. Where a pro se civil 24 rights plaintiff shows he has a good grasp of basic litigation procedure and has been able 25 to articulate his claims adequately, he does not demonstrate the exceptional 26 circumstances required for the appointment of counsel. See Palmer v. Valdez, 560 F.3d 27 965, 970 (9th Cir. 2009). Thus, the Court finds that Plaintiff is sufficiently able to 28 articulate his claims pro se, given the complexity of the issues involved. 1 Plaintiff also states that his “lack of education as well as legal training and/or 2 experience hinders his ability to comprehend and/or perform discovery.” ECF No. 20 at 3 2. Plaintiff does not specify his level of education, only that he does not have legal 4 training. Indeed, in many cases pro se plaintiffs do not have legal training. However, 5 that is not the standard for appointment of counsel. Limited education is not sufficient to 6 meet exceptional circumstances. See, e.g., Wood v. Housewright, 900 F.2d 1332, 1335-36 7 (9th Cir. 1990) (upholding denial of appointment of counsel where plaintiff complained 8 that he had limited access to a law library and lacked a legal education); Galvan v. Fox, 9 No. 2:15-CV-01798-KJM (DB), 2017 WL 1353754, at *8 (E.D. Cal. Apr. 12, 2017) 10 (“Circumstances common to most prisoners, such as lack of legal education and limited 11 law library access, do not establish exceptional circumstances that warrant a request for 12 voluntary assistance of counsel.”). Since lack of legal training is not the appropriate 13 standard, the second Wilborn factor is not satisfied. 14 Plaintiff also cites to several cases that he claims support his argument for 15 appointment of counsel. All of these cases are out- of-circuit authority and not 16 controlling. The first case is Tabron v. Grace, 6 F.3d 147, 150 (3rd Cir. 1993). Plaintiff 17 claims Tabron holds the need for discovery supports appointment of counsel. ECF No. 18 20 at 2. However, there the court more specifically states “where the claims are likely to 19 require extensive discovery and compliance with complex discovery rules, appointment of 20 counsel may be warranted.” Tabron, 6. F.3d at 156. Plaintiff contends that discovery in 21 this case will include depositions and medical opinions by experts. ECF No. 20 at 2. 22 However, at this juncture, it is at best uncertain whether such discovery is necessary. The 23 court has previously denied Plaintiff’s motion to appoint a medical expert. ECF No. 18. 24 Since it is still very early in the case and the complexity of discovery is as yet unknown, 25 the court is not persuaded by Tabron. Plaintiff also argues that Parham v. Johnson shows 26 that a lack of legal experience and complex discovery warrants appointment of counsel. 27 ECF No. 20 at 2 (citing Parham v. Johnson, 126 F.3d 454, 459 (3rd Cir. 1997)). As 28 discussed above, the standard here is not whether Plaintiff has legal training. Nor does it 1 || appear that at present discovery 1s so complex as to support appointment of counsel. 2 || Therefore, Parham, like Tabron, is not persuasive. Plaintiff also points to Montgomery v. 3 || Pinchak, but that case relies on Parham, which is not persuasive. Montgomery v. 4 || Pinchak, 294 F.3d 492, 501-502 (3rd Cir. 2002). Additionally, the court in Montgomery 5 refers to multiple obstacles the Plaintiff there encountered during discovery. Id. As yet, 6 ||such obstacles have not arisen here. Therefore, Montgomery is similarly unpersuasive. 7 || Finally, Plaintiff cites Hendricks v. Coughlin, which notes the importance of taking 8 || depositions rather than just taking written discovery. ECF No. 20 at 2 (citing Hendricks 9 || v. Coughlin, 114 F.3d 390, 394 (2nd Cir. 1997)). While depositions can be an important 10 || discovery tool, plaintiff has not shown why written interrogatories would be insufficient 11 ||here. Therefore, the court is not persuaded by Hendricks. 12 For the foregoing reasons, the Court thus does not find the “exceptional 13 || circumstances” required for appointment of counsel under 28 U.S.C. § 1915(e)(1) to be 14 || satisfied at this time. Accordingly, Plaintiff's request for appointment of counsel is 15 |} DENIED WITHOUT PREJUDICE. 16 ||Dated: April 30, 2021 17 Mie. Lo mm 18 Hon. Nita L. Stormes 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28