Stewart v. Schreiner ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 ANTHONY STEWART, Case No. 2:23-cv-00277-APG-NJK 7 Plaintiff(s), ORDER 8 v. 9 JONAH SCHREINER, et al., [Docket No. 26] 10 Defendant(s). 11 Pending before the Court is Plaintiff’s motion to appoint counsel. Docket No. 26. 12 A litigant does not have a constitutional right to counsel to pursue civil rights claims. See 13 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). “The court may request an attorney to 14 represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The Court will request 15 an attorney for indigent civil litigants in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 16 965, 970 (9th Cir. 2009). The word “exceptional” is defined as “out of the ordinary course, 17 unusual,” or “rare.” See Oxford English Dictionary (Oxford Univ. Press 2015). Representations 18 of an inability to retain counsel, as well as “[c]ircumstances common to most prisoners, such as 19 lack of legal education and limited law library access, do not establish exceptional circumstances 20 that warrant a request for voluntary assistance of counsel.” E.g., Boyd v. Henry, No. 2:23-cv- 21 01022-CDS-MDC, 2024 WL 4046456, at *5 (D. Nev. May 9, 2024) ((quoting Baker v. Macomber, 22 No. 2:15-cv-00248-TLN-AC, 2020 WL 1182495, at *1 (E.D. Cal. Mar. 12, 2020)). When 23 determining whether exceptional circumstances exist, the Court considers the plaintiff’s likelihood 24 of success on the merits and the plaintiff’s ability to articulate his claims pro se in light of the 25 complexity of the legal issues involved. Palmer, 560 F.3d at 970. “Neither of these considerations 26 is dispositive and instead must be viewed together.” Id. 27 In the circumstances of this case, the Court is not persuaded that requesting an attorney for 28 Plaintiff is warranted. While Plaintiff has stated colorable claims sufficiently to proceed past the 1} pleading stage, Plaintiff has not yet demonstrated that evidence shows a likelihood to succeed on 2|| the merits of that clam. Cf Hucker v. Daub, No. 21-cv-577 JLS (AHG), 2021 WL 2550089, at 3] *6 (S.D. Cal. June 22, 2021) (collecting cases that stating a colorable claim is not, standing alone, 4] sufficient to demonstrate a likelihood of success on the merits). Moreover, the claims alleged are 5] not complex. Plaintiff has thus far shown a sufficient ability to articulate claims and arguments 6|| without the assistance of counsel.' 7 Accordingly, the motion to appoint counsel is DENIED. 8 IT IS SO ORDERED. 9 Dated: October 8, 2024 10 LZ fh fo Nancy J. > e 1] United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ' The motion indicates that Plaintiff may require assistance at trial. See Docket No. 26 at 6. Given the procedural posture of the case, the Court addresses herein whether exceptional 27| circumstances justify counsel for pretrial purposes. If this case proceeds past the summary judgment phase, nothing herein prevents Plaintiff from seeking at that juncture the assistance of counsel for trial purposes.