Bryson v. Zuniga ( 2021 )

1 UNITED STATES D ISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 Jeremy Bryson, Case No. 2:20-cv-00089-JAD-BNW 5 Plaintiff, ORDER 6 v. 7 Zuniga, et al., Defendants. 8 9 10 Before the Court is pro se plaintiff Jeremy Bryson’s motion for appointment of counsel. 11 ECF No. 12. No opposition has been filed. For the reasons explained below, the Court will deny 12 the motion. 13 I. Background 14 Mr. Bryson brings a lawsuit under 42 U.S.C. § 1983 for a violation of the Eighth 15 Amendment. Mr. Bryson alleges that Defendants Zuniga, Dzurenda, and Williams were 16 deliberately indifferent to his safety after Defendant Zuniga placed him, an inmate in the 17 Protective Segregation Unit, in a holding cell with General Population inmates who proceeded to 18 attack him, causing injury to his head and eye. ECF No. 1-1. 19 Mr. Bryson requests a court-appointed attorney, arguing the issues of the case are very 20 complex and will require significant research and investigation and that he has limited access to 21 the law library and limited knowledge of the law. ECF No. 12. Additionally, he argues that 22 having an attorney would allow him to obtain video evidence from another institution in Clark 23 County that he has been unable to obtain and is needed to prove his legal basis in this case. Id. 24 Finally, Mr. Bryson argues that a trial in this case will likely involve conflicting testimony and 25 counsel would better enable him to present evidence and cross examine witnesses. Id. 26 II. Discussion 27 Civil litigants do not have a Sixth Amendment right to appointed counsel. Storseth v. 1 empowered to request an attorney to represent an indigent civil litigant. For example, courts have 2 discretion, under 28 U.S.C. § 1915(e)(1), to “request” that an attorney represent indigent civil 3 litigants upon a showing of “exceptional circumstances.” Agyeman v. Corrections Corp. of Am., 4 390 F.3d 1101, 1103 (9th Cir. 2004). The circumstances in which a court will make such a 5 request, however, are exceedingly rare and require such a showing. United States v. 30.64 Acres 6 of Land, 795 F.2d 796, 799-800 (9th Cir. 1986); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 7 Cir. 1986). 8 To determine whether the “exceptional circumstances” necessary for appointment of 9 counsel are present, the court evaluates (1) the likelihood of plaintiff’s success on the merits and 10 (2) the plaintiff’s ability to articulate his claim pro se “in light of the complexity of the legal 11 issues involved.” Agyeman, 390 F.3d at 1103 (quoting Wilborn, 789 F.2d at 1331). Neither of 12 these factors is dispositive and both must be viewed together. Wilborn, 789 F.2d at 1331. 13 Here, though it is still early in the litigation to evaluate the likelihood of success on the 14 merits, the Court finds that Mr. Bryson properly pled at least one claim which survived the 15 screening process–the violation of the Eighth Amendment through deliberate indifference to his 16 safety. ECF No. 7. Therefore, he has demonstrated some likelihood of success on the merits. 17 However, Mr. Bryson has also demonstrated his ability to articulate his claims pro se. His 18 filings are both comprehensible and literate. Mr. Bryson argues that the issues of the case are very 19 complex and will require significant research and investigation and that he has limited access to 20 the law library and limited knowledge of the law. While there are multiple defendants named in 21 the complaint, Mr. Bryson is only litigating one claim for a violation of the Eighth Amendment 22 through deliberate indifference to his safety, which is not of “substantial complexity.” Terrell v. 23 Brewer, 935 F. 2d 1015, 1017 (9th Cir. 1991) (upholding a denial of appointment of counsel in a 24 claim of a violation of the Eighth Amendment guarantee against cruel and unusual punishment). 25 Moreover, as with most pro se, incarcerated litigants, access to the law library and limited 26 knowledge of the law makes litigating claims difficult and assistance of counsel may ease such 27 difficulties. However, this is not the test when evaluating if exceptional circumstances exist, and 1 positions. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (holding that in order to 2 establish exceptional circumstances litigants must show that because of the complexity of their 3 claims they are unable to articulate their positions). 4 Additionally, while Mr. Bryson argues that a trial in this case will likely involve 5 conflicting testimony and counsel would better enable him to present evidence and cross examine 6 witnesses, these are not conditions that create a complex legal issue sufficient to be deemed an 7 exceptional circumstance. Rather, these obstacles are merely “difficulties which any litigant 8 would have in proceeding pro se.” Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir. 9 1990). 10 Furthermore, the Court does not find that any difficulty Mr. Bryson has experienced in 11 attempting to litigate his case has “derived from the complexity of the issues involved.” Wilborn, 12 789 F.2d at 1331. Mr. Bryson argues that his inability to obtain specific video evidence from 13 another Clark County institution will prevent him from proving his case. ECF No. 12. While Mr. 14 Bryson has had some difficulty in obtaining this evidence through a court ordered subpoena, this 15 is not a matter which speaks to the complexity of the issues. Similarly to the plaintiff in Wilborn, 16 the need for particular discovery–in this case video evidence–“does not necessarily qualify the 17 issues involved as complex.” Id. “If all that was required to establish successfully the complexity 18 of the relevant issues was a demonstration of the need for development of further facts, 19 practically all cases would involve complex legal issues.” Id. Therefore, Mr. Bryson’s difficulty 20 in obtaining this evidence does not create such a complex legal issue that it would rise to level of 21 an extraordinary circumstance. 22 Accordingly, the Court does not find that Mr. Bryson’s situation constitutes an 23 extraordinary circumstance requiring counsel. Any pro se litigant “would be better served with 24 the assistance of counsel.” Rand v. Rowland, 113 F.3d at 1525 (citing Wilborn, 789 F.2d at 1331). 25 Nonetheless, so long as a pro se litigant can “articulate his claims against the relative complexity 26 of the matter,” the “exceptional circumstances” which might require the appointment of counsel 27 do not exist. Id. In its discretion, the Court, therefore, finds that Mr. Bryson does not demonstrate 1 || the exceptional circumstances required for the appointment of an attorney and will deny his 2 || motion without prejudice. 3 IT IS THEREFORE ORDERED that plaintiff's motion for appointment of counsel (ECF 4 || No. 12) is DENIED. 5 DATED: August 1, 2021. KK p_~ Les WO ERA, 7 Brenda Weksler United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28