McGilbra v. Naphcare, Inc., and County of Washoe ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 ZAFFERINE AMIT MCGILBRA, Case No.: 3:20-cv-00324-MMD-WGC 7 Plaintiff, Order 8 v. Re: ECF No. 24 9 NAPHCARE, INC., and COUNTY OF WASHOE, 10 Defendants. 11 12 Before the court is Plaintiff’s “Motion for Court Appointed Counsel” (ECF No. 24). 13 Plaintiff bases his motion on the fact that he “needs help in assembling a discovery, and other 14 matters relevant to Case No. 3:20-cv-00324-MMD-WGC in a jury trial against the Defendants and 15 Defendants’ lawyers.” (Id.) 16 The United States Supreme Court has generally stated that although Congress provided 17 relief for violation of one’s civil rights under 42 U.S.C. § 1983, the right to access to the courts is 18 only a right to bring complaints to federal court and not a right to discover such claims or to litigate 19 them effectively once filed with a court. Lewis v. Casey, 518 U.S. 343, 354-355 (1996). 20 While any pro se inmate such as Mr. McGilbra would likely benefit from services of 21 counsel, that is not the standard this court must employ in determining whether counsel should be 22 appointed. Wood v. Housewright, 900 F.2d 1332, 1335-1336 (9th Cir. 1990). 23 1 A litigant in a civil rights action does not have a Sixth Amendment right to appointed 2 counsel. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). In these orders, the court 3 explained that only in very limited circumstances are federal courts empowered to request an 4 attorney to represent an indigent civil litigant. The circumstances in which a court will grant such 5 a request, however, are exceedingly rare, and the court will grant the request under only 6 extraordinary circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th 7 Cir. 1986); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 8 A finding of such exceptional or extraordinary circumstances requires that the court 9 evaluate both the likelihood of Plaintiff’s success on the merits and the pro se litigant's ability to 10 articulate his claims in light of the complexity of the legal issues involved. Neither factor is 11 controlling; both must be viewed together in making the finding. Terrell v. Brewer, 935 F.2d 1015, 12 1017 (9th Cir. 1991), citing Wilborn, supra, 789 F.2d at 1331. Thus far, Plaintiff has shown an 13 ability to articulate his claims. 14 In the matter of a case's complexity, the Ninth Circuit in Wilborn noted that: If all that was required to establish successfully the 15 complexity of the relevant issues was a demonstration of the need for development of further facts, practically all 16 cases would involve complex legal issues. Thus, although Wilborn may have found it difficult to 17 articulate his claims pro se, he has neither demonstrated a likelihood of success on the merits nor shown that the 18 complexity of the issues involved was sufficient to require designation of counsel. 19 The Ninth Circuit therefore affirmed the District Court's exercise of discretion in denying 20 the request for appointment of counsel because the Plaintiff failed to establish the case was 21 complex as to facts or law. 789 F.2d at 1331. 22 The substantive claims involved in this action are not unduly complex. Plaintiff’s First 23 Amended Complaint was allowed to proceed on the portion of Count 2 alleging municipal due 1 process claims against Defendants Naphcare, Inc., and Washoe County for allegedly not adopting 2 adequate or sufficient precautions to test for, screen or prevent spread of COVID-19 within the jail 3 setting. (ECF No. 8 at 11.) 4 Similarly, with respect to the Terrell factors, Plaintiff has failed to convince the court of 5 the likelihood of success on the merits of his claims. In fact, Plaintiff’s motion (ECF No. 24) is 6 devoid of any argument or discussion as to why Plaintiff suggests he will prevail on the merits of 7 his claims. 8 The court does not have the power “to make coercive appointments of counsel." Mallard v. 9 U. S. Dist. Ct., 490 US 296, 310 (1989). Thus, the court can appoint counsel only under exceptional 10 circumstances. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) [cert den 130 S.Ct. 1282 11 (2010)]. Plaintiff has once again not shown that the exceptional circumstances necessary for 12 appointment of counsel are present in this case. 13 In the exercise of the court's discretion, it DENIES Plaintiff’s “Motion for Court Appointed 14 Counsel” (ECF No. 24). 15 IT IS SO ORDERED. 16 Dated: December 8, 2020. 17 _________________________________ William G. Cobb 18 United States Magistrate Judge 19 20 21 22 23