Free Order on Motion for Reconsideration - District Court of California - California

Case 3:08-cv-00408-WQH-BLM

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) Plaintiff, ) v. ) ) DENNIS WILSON, San Diego Police ) Officer; ESMERALDA TAGABAN, San ) Diego Police Officer; SERGEANT ) GRIFFIN; DETECTIVE LEMUS, ) ) Defendants. ) ) WILLIAM JOHN DAUGHTERY, CDCR #F-79985, Case No. 08cv0408-WQH (BLM) ORDER DENYING EX PARTE MOTION FOR RECONSIDERATION OF ORDER DENYING APPOINTMENT OF COUNSEL [Doc. No. 20] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On April 21, 2008, Plaintiff, who is proceeding pro se and in forma pauperis with a Complaint brought pursuant to 42 U.S.C. § 1983, filed a request for assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Doc. No. 13. This Court denied his request on April 23, 2008, finding

that Plaintiff had failed to demonstrate the requisite "exceptional circumstances" to justify appointment of counsel. Doc. No. 14.

Plaintiff now seeks reconsideration of the Court's order. Doc. No. 20 ("Pet'r Mot."). In support of his motion, Plaintiff presents

additional facts and argument, which he contends provide justification for alteration of this Court's prior findings and appointment of counsel. First, Plaintiff explains that he suffers from, and takes

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Case 3:08-cv-00408-WQH-BLM

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medication for, clinical depression and anxiety. Id. at 3-4. According to Plaintiff, these mental illnesses, coupled with the medications he takes to treat them, impact his concentration, "rational processes" and ability to "act as a normal person can act." Id. at 4. Second,

Plaintiff contends that several physical infirmities - some caused by the alleged excessive force and some pre-existing - cause him constant pain. Id. at 4-5. The pain, and the medication he takes to ease the

pain, allegedly impact Plaintiff's ability to concentrate, type and see (in regard to this last symptom, Plaintiff claims that glaucoma causes him to suffer eye fatigue, partial blindness, and headaches). Id.

Third, Plaintiff lists various pieces of evidence he will need in order to pursue his case1, which he argues may be unavailable to him without the assistance of counsel. Id. at 5-7. For instance, Plaintiff

contends that without access to trial records and phone books, he cannot locate and contact the civilian and police witnesses or find and hire an expert witness. Id. Plaintiff also asserts that the prison will not

disclose medical or psychological records to inmates as a matter of prison policy. Id. Finally, Plaintiff submits that he cannot

adequately pursue his case because he can only make collect telephone calls (and people rarely accept the charges), he has limited access to the prison library and no access to the internet or telephone books, and he cannot afford to pay an attorney or the "jailhouse lawyers" who
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Specifically, Plaintiff states that he will require access to police

reports regarding the incident, an expert witness on the topic of police procedure, a tape recording of the drug "sting" operation, two witnesses to the incident, all of the officers involved in the incident, the green coat worn by Plaintiff and entered as an exhibit at trial, photographs of Plaintiff taken after the incident, medical records, and all of the transcripts and defense records from the underlying criminal trial. Pet'r Mot. at 5-7.

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prepared the instant motion.

Id. at 7-10.

In light of the totality of

these claimed "exceptional circumstances", Plaintiff contends that the Court must appoint counsel to assist him. Id. at 9.

As this Court explained in its April 23, 2008 order, "[t]here is no constitutional right to appointed counsel in a § 1983 action." Rand v.

Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); see also Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) ("there is no absolute right to counsel in civil proceedings"). Thus, federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States District Court, 490

U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) ("Appointment of counsel under [28 U.S.C. § 1915] is discretionary, not mandatory"). District courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to request the voluntary assistance of counsel to

represent indigent civil litigants upon a showing of "exceptional circumstances." Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Because the Court does not have a reasonable

method to compel or compensate counsel in such situations, it "will seek volunteer counsel only in the most serious and exceptional cases." Shelton v. Chorley, 2007 WL 3146999, *4 (E.D. Cal. 2007). the exceptional circumstances of the plaintiff "A finding of assistance

seeking

requires at least an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims `in light of the complexity of the legal issues involved.'" Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon,

789 F.2d 1328, 1331 (9th Cir. 1986)).

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Having reviewed Plaintiff's additional factual assertions and arguments, the Court does not presently find that they present a basis for reversing its prior decision. At this early stage in the

proceedings, the Court cannot make a determination as to whether Plaintiff is likely to succeed on the merits. And, regardless of

whether he has done so on his own or with the assistance of "jailhouse lawyers," Plaintiff already has adequately articulated his excessive force claims. *4. See Rand, 113 F.3d at 1525; Shelton, 2007 WL 3146999 at

Moreover, the case as detailed in the Complaint and subsequent

filings is not unusually complex. To the extent Plaintiff expresses concerns about his ability to obtain discovery, these issues are not ripe for review as Plaintiff has not yet attempted to obtain any of the discovery he details in his motion or filed any motions related thereto. Moreover, the Ninth

Circuit addressed just these types of concerns over a decade ago in response to an appeal by a pro se prisoner pursuing a section 1983 action. The prisoner argued that "had he had the assistance of counsel

during the early stages of the proceedings, he may well have fared better-particularly in the realms of discovery and the securing of expert testimony." Rand, 113 F.3d at 1525. In response, the Ninth

Circuit explained that "this is not the test" because "any pro se litigant certainly would be better served with the assistance of counsel." Id. The Court reconfirmed that the "test" for appointment

of counsel is a prisoner's demonstration of "exceptional circumstances" based on likelihood of success on the merits and the ability to articulate his claims. /// /// Id.

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For the foregoing reasons, the Court find that Plaintiff has not alleged the requisite "exceptional circumstances" and hereby DENIES Plaintiff's motion for reconsideration [Doc. No. 20] WITHOUT PREJUDICE. IT IS SO ORDERED. DATED: May 9, 2008

BARBARA L. MAJOR United States Magistrate Judge

COPY TO: HONORABLE WILLIAM Q. HAYES U.S. DISTRICT JUDGE ALL COUNSEL

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