Clack v. Latimer et al, No. 3:2008cv00624 - Document 23 (S.D. Cal. 2009)
Court Description: ORDER denying w/o prejudice Plaintiff's 21 Motion for Appointment of Counsel. Signed by Magistrate Judge Ruben B. Brooks on 2/18/2009. (All non-registered users served via U.S. Mail Service).(jah)
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Clack v. Latimer et al Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER CHARLES ALEXANDER CLACK, 12 Plaintiff, 13 14 v. 15 16 SAN DIEGO SHERIFFS DEPARTMENT; DEPUTY LATIMER #3275; DEPUTY HOENIG #2840, 17 Defendants. 18 Civil No. 08cv0624 IEG (RBB) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL [DOC. NO. 21] 19 Plaintiff Christopher Clack, a state prisoner proceeding pro 20 se and in forma pauperis, filed a civil rights Complaint under 42 21 U.S.C. § 1983 on April 4, 2008 [doc. no. 1]. 22 constitutional right to be free from cruel and unusual punishment, 23 right to freedom of association, and his right to medical care were 24 violated while he was in custody. 25 later, Plaintiff submitted this Motion for Appointment of Counsel 26 [doc. no. 21], which was filed nunc pro tunc to January 22, 2009. 27 28 He alleged that his (Compl. 3-5.) Several months In support of his request for appointment of counsel, Clack asserts the following: (1) He is unable to afford an attorney; (2) 1 08cv0624 IEG(RBB) Dockets.Justia.com 1 the issues in his case are complex and will require research and 2 investigation which will be difficult for him to perform;(3) a 3 trial in his case will likely involve conflicting testimony; and 4 (4) he has attempted but failed to secure counsel. 5 Appointment of Counsel 1-3.) 6 28 U.S.C. § 1915(e)(1) provides: (Mot. for “The court may request an 7 attorney to represent any person unable to afford counsel.” 28 8 U.S.C.A. § 1915(e)(1) (West 2009). 9 that there is generally no constitutional right to counsel in civil Yet, “it is well-established 10 cases.” 11 1996) (citing Hedges v. Resolution Trust Corp. (In re Hedges), 32 12 F.3d 1360, 1363 (9th Cir. 1994). 13 right to appointed counsel to pursue a § 1983 claim. 14 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. 15 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); accord Campbell v. 16 Burt, 141 F.3d 927, 931 (9th Cir. 1998). 17 have the authority “to make coercive appointments of counsel.” 18 Mallard v. United States Dist. Court, 490 U.S. 296, 310 19 (1989)(discussing § 1915(d); see also United States v. $292,888.04 20 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). 21 United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. There is also no constitutional Rand v. Federal courts do not Nevertheless, district courts have discretion, pursuant to 28 22 U.S.C. § 1915(e)(1), to request attorney representation for 23 indigent civil litigants upon a showing of exceptional 24 circumstances. 25 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 26 1236 (9th Cir. 1984)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 27 Cir. 1991); Burns v. County of King, 883 F.2d 819, 824 (9th Cir. 28 1989). See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 2 08cv0624 IEG(RBB) 1 A finding of the exceptional circumstances of the plaintiff seeking assistance 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.” 2 3 4 5 Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 6 1328, 1331 (9th Cir. 1986) (citation omitted)). 7 factors is dispositive and both must be viewed together before 8 reaching a decision.’” 9 789 F.2d at 1332). 10 I. “‘Neither of these Terrell, 935 F.2d at 1017 (quoting Wilborn, Likelihood of Plaintiff’s Success on the Merits To receive court-appointed counsel, Clack must present a 11 12 nonfrivolous claim that is likely to succeed on the merits. 13 Wilborn, 789 F.2d at 1331. 14 three causes of action arising under the Constitution: 15 from cruel and unusual punishment, deliberate indifference to right 16 to medical care, and interference with his right to free 17 association. 18 that on March 29, 2007, Defendant Latimer threw Clack’s body and 19 head to the floor until his chin was “split to the bone.” 20 3.) 21 Latimer placed Clack in a cell to suffer until the next shift of 22 deputies found Plaintiff and took him to the emergency room. 23 at 4.) 24 Defendant Latimer and prevented other inmates from assisting Clack, 25 which violated his right to free association. 26 (Compl. 3-5.) Plaintiff’s Complaint purports to state freedom In the Complaint, Plaintiff asserts (Id. at Refusing to provide the Plaintiff medical care, Defendant (Id. Plaintiff also alleges that Defendant Hoening aided (Id. at 5) A plaintiff claiming excessive force under the Eighth 27 Amendment must “allege . . . the unnecessary and wanton infliction 28 of pain . . . .” Whitley v. Albers, 475 U.S. 312, 320 (1986). 3 08cv0624 IEG(RBB) 1 Plaintiff “is required to allege overt acts with some degree of 2 particularity such that his claim is set forth clearly enough to 3 give defendants fair notice of the type of claim being pursued.” 4 Ortez v. Wash. County, 88 F.3d 804, 810 (9th Cir. 1996) (citing 5 Jones v. Cmty. Redev. Agency, 733 F.2d at 649). 6 official may be liable for failure to protect an inmate from a use 7 of excessive force if he is deliberately indifferent to a 8 substantial risk of serious harm to an inmate.” 9 Delo, 115 F.3d 1388, 1395 (8th Cir. 1997) (citations omitted); see 10 11 “A prison Estate of Davis v. also Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000). Two elements comprise an Eighth Amendment claim for deliberate 12 indifference to serious medical needs. 13 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 14 104 (1976)). 15 need’ by demonstrating that ‘failure to treat a prisoner’s 16 condition could result in further significant injury or the 17 “unnecessary and wanton infliction of pain.”’ 18 omitted). 19 response to the need was deliberately indifferent.” 20 omitted). 21 purposeful act or failure to respond to a prisoner's pain or 22 possible medical need and (b) harm caused by the indifference.” 23 Id. (citations omitted). 24 Jett v. Penner, 439 F.3d “First, the plaintiff must show a ‘serious medical Id. (citations “Second, the plaintiff must show the defendant’s Id. (citations The second prong, “is satisfied by showing (a) a Although Plaintiff’s allegations are sufficient to state a 25 claim for relief, it is too early for the Court to determine 26 Clack’s likelihood of success on the merits. 27 factual information, the Court cannot conclude that Plaintiff is Without additional 28 4 08cv0624 IEG(RBB) 1 likely to succeed. 2 1993). 3 II. See Bailey, 835 F. Supp. 550, 552 (S.D. Cal. Plaintiff’s Ability To Proceed Without Counsel 4 To be entitled to appointed counsel, Clack must also show he 5 is unable to effectively litigate the case pro se in light of the 6 complexity of the issues involved. 7 See Wilborn, 789 F.2d at 1331. Courts have required that “indigent plaintiffs make a 8 reasonably diligent effort to secure counsel as a prerequisite to 9 the court’s appointing counsel for them.” Bailey v. Lawford, 835 10 F. Supp. at 552. 11 in an attempt to secure counsel. 12 2.) 13 prior to petitioning for appointment of counsel. 14 Plaintiff has contacted at least four attorneys (Mot. for Appointment of Counsel He has made a reasonably diligent effort to secure counsel Clack claims he is unable to afford outside legal counsel. 15 (Id. at 16 alone does not entitle a plaintiff to appointed counsel. 17 further asserts that his placement in Centinela State Prison’s D 18 yard burdens his ability to adequately conduct research and prepare 19 his case. 20 particular yard, so his placement limits his access to legal 21 materials necessary to pursue the case himself. 22 on these facts, Plaintiff requests a court-appointed attorney. 23 (Id. at 1-2.) 24 1-3.) This argument is not compelling because indigence (Id. at 2.) Plaintiff He claims there is no law library in his (Id. at 2.) Based Although Clack asserts that his access to legal materials is 25 limited, he has not presented any facts demonstrating that he is 26 being denied “reasonable” access. 27 of Corrs., 776 F.2d 851, 858 (9th Cir. 1985). 28 does not guarantee a prisoner unlimited access to a law library. See Lindquist v. Idaho State Bd. 5 “[T]he Constitution 08cv0624 IEG(RBB) 1 Prison officials of necessity must regulate the time, manner, and 2 place in which library facilities are used.” 3 not shown that he is denied reasonable access to a law library or 4 other means of conducting legal research, or that he is subjected 5 to burdens beyond those ordinarily experienced by pro se 6 plaintiffs. 7 Id. Plaintiff’s Complaint is adequate in form. Plaintiff has Clack was also 8 able to file an Motion for Appointment of Counsel, suggesting at 9 least some ability to navigate the legal process. See Plummer v. 10 Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996) (finding the district 11 court did not abuse its discretion in denying plaintiff counsel, in 12 part because plaintiff adequately filed a complaint and other pre- 13 trial materials). 14 “[A]ny pro se litigant certainly would be better served with 15 the assistance of counsel.” 16 Wilborn, 789 F.2d at 1331 (explaining, “a pro se litigant will 17 seldom be in a position to investigate easily the facts necessary 18 to support the case[]”). 19 appointed counsel if he can show “that because of the complexity of 20 the claims he [is] unable to articulate his positions.” 21 F.3d at 1525. 22 this case “exceptional” or the issues in it particularly complex. Rand, 113 F.3d at 1525; see also But Plaintiff is only entitled to Rand, 113 Clack has shown nothing in the record which makes 23 Additionally, factual disputes and anticipated cross- 24 examination of witnesses do not indicate the presence of complex 25 legal issues warranting a finding of exceptional circumstances. 26 See Rand, 113 F.3d at 1525 (holding that while the appellant might 27 have fared better with counsel during discovery and in securing 28 expert testimony, “this is not the test[]”). 6 The “exceptional 08cv0624 IEG(RBB) 1 circumstances” required for appointment of counsel pursuant to 28 2 U.S.C. § 1915(e)(1) are absent. 3 Because Plaintiff has failed to demonstrate either a 4 likelihood of success on the merits of his claims or an inability 5 to represent himself (beyond the ordinary burdens encountered by 6 prisoners representing themselves pro se), Plaintiff’s motion is 7 DENIED without prejudice. 8 IT IS SO ORDERED. 9 10 11 Dated: February 18, 2009 ______________________________ Ruben B. Brooks United States Magistrate Judge 12 13 cc: 14 Judge Gonzalez All Parties of Record 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 K:\COMMON\BROOKS\CASES\1983\PRISONER\CLACK0624\Order re appointment of counsel.wpd 08cv0624 IEG(RBB)
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