Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GINO VINDIOLA, Case No.: 24cv2070-CAB (MSB)

12 Plaintiff, ORDER DENYING MOTION FOR 13 v. APPOINTMENT OF COUNSEL [ECF NO. 22] 14 SAN DIEGO COUNTY SHERIFF’S DEPARTMENT, et al., 15 Defendants. 16 17 18 I. RELEVANT BACKGROUND 19 Plaintiff Gino Vindiola (“Plaintiff”), proceeding pro se and in forma pauperis in this 20 civil rights action, is presently incarcerated at Richard J. Donovan Correctional Facility. 21 (See ECF Nos. 4 & 7.) On November 1, 2024, Plaintiff filed a Complaint in the Southern 22 District of California pursuant to 42 U.S.C. § 1983. (ECF No. 1.) After the Court screened 23 and dismissed Plaintiff’s Complaint [ECF No. 4], Plaintiff filed a First Amended Complaint 24 (“FAC”) asserting a constitutional claim against the San Diego County Sheriff’s 25 Department, Corporal Romo, and Deputy Gonzalez (collectively, “Defendants”). (ECF 26 No. 7.) Plaintiff alleges that Defendants violated his constitutional right to adequate 27 medical care under the Fourteenth Amendment’s “objective deliberate indifference 2 constitutional claim as to Defendants Romo and Gonzalez and dismissed the San Diego 3 County Sheriff’s Department as a defendant. (ECF No. 8.) 4 Now pending before this Court is Plaintiff’s Motion for Appointment of Counsel 5 pursuant to 28 U.S.C. § 1915(e)(1). (ECF No. 22 (“Motion”).) For the reasons set forth 6 below, the Motion is DENIED without prejudice. 7 II. PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 8 In support of the Motion, Plaintiff asserts that (1) he “is unable to afford [c]ounsel 9 and has been granted leave of the Court to proceed in forma pauperis,” (2) his 10 “imprisonment will greatly limit is ability to engage in meaningful litigation [due to] the 11 complexity of this case,” (3) “[c]ounsel would be better in the presentation of evidence 12 and cross examination of witnesses and protection of Plaintiff’s [c]ivil rights,” and (4) he 13 “has made a genuine effort to obtain a [l]awyer” on a contingency or pro bono basis to 14 assist in this case but has been unsuccessful in doing so. (ECF No. 22 at 1–3.) 15 Additionally, Plaintiff notes that he has limited access to the law library and “virtually no 16 knowledge of law or procedure.” (Id. at 2.) Plaintiff further notes that he “has been 17 extremely fortunate to receive assistance from a concerned fellow [i]nmate” who will be 18 unable to assist further in this case at any settlement conference or other court 19 proceeding. (Id.) 20 III. LEGAL STANDARD 21 The Constitution provides no right to appointment of counsel in a civil case unless 22 an indigent litigant “may lose his physical liberty if he loses the litigation.” Lassiter v. 23 Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 25 (1981). Additionally, there is 24 no constitutional right to court-appointed counsel in cases filed by inmates arising under 25 42 U.S.C. § 1983. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Although 26 28 U.S.C. § 1915(e)(1) grants district courts discretion to “request” that an attorney 27 represent an indigent civil litigant, such discretion may only be exercised upon a 2 1991). When assessing whether exceptional circumstances exist, the district court must 3 undertake “an evaluation of both ‘the likelihood of success on the merits [and] the 4 ability of the petitioner to articulate his claims pro se in light of the complexity of the 5 legal issues involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) 6 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). This court must review 7 both factors before deciding whether to appoint counsel, and neither factor is 8 individually dispositive. See Wilborn, 789 F.2d at 1331. 9 IV. DISCUSSION 10 A. Likelihood of Success on the Merits 11 A plaintiff who provides no evidence of his likelihood of success at trial fails to 12 satisfy the first factor of the Wilborn test. See, e.g., Bailey v. Lawford, 835 F. Supp. 550, 13 552 (S.D. Cal. 1993) (finding that the plaintiff failed to satisfy the first factor of the 14 Wilborn test because he “offer[ed] no evidence other than his own assertions to 15 support his claims”). Here, Plaintiff does not present any evidence regarding the 16 likelihood of his success on the merits of his claim for violation of his constitutional right 17 to adequate medical care under the Fourteenth Amendment. (See generally ECF No. 18 22.) Although the allegations raised by Plaintiff in the FAC are sufficient to state a claim 19 for relief [see ECF Nos. 7 & 8], it is premature for the Court to determine the strength of 20 Plaintiff’s claim. See e.g., Arellano v. Blahnik, No. 16-cv-02412-CAB-RNB, 2018 U.S. Dist. 21 LEXIS 164604, at *6 n.1 (S.D. Cal. Sept. 25, 2018) (denying a motion to appoint 22 counsel because, “[a]lthough plaintiff’s . . . claim survived defendant’s motion to 23 dismiss, it is still too early to determine the likelihood of success on the merits”); Hearn 24 v. RJD Warden, No. 22-cv-255-TWR-DDL, 2022 U.S. Dist. LEXIS 218042, at *3 (S.D. Cal. 25 Dec. 2, 2022) (finding that, when the plaintiff’s claims remain unproven at an “early 26 stage of the proceedings, there is no basis upon which the Court can predict Plaintiff’s 27 success at trial”). Accordingly, Plaintiff fails to satisfy the first factor of the Wilborn test. 2 Where a pro se civil rights plaintiff demonstrates that he has a grasp of basic 3 litigation procedure and has articulated his claims adequately, he does not demonstrate 4 the exceptional circumstances required for the appointment of counsel. See, e.g., 5 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (finding that the second factor of the 6 Wilborn test was not satisfied when the district court observed the plaintiff “was well- 7 organized, made clear points, and presented the evidence effectively”). The Court has 8 reviewed all of the documents filed by Plaintiff in this case, including the Complaint [ECF 9 No. 1], Motion to Proceed in Forma Pauperis [ECF No. 2], Motion for Extension of Time 10 to Amend [ECF No. 5], First Amended Complaint [ECF No. 7], and the instant Motion for 11 Appointment of Counsel [ECF No. 22]. Although the Court acknowledges that the 12 litigation to date has not been extensive, these documents demonstrate that Plaintiff is 13 able to navigate litigation procedure and articulate his claims without the assistance of 14 counsel. 15 Plaintiff claims that his previous filings in this case, beginning with the FAC, were 16 prepared and submitted with the assistance of a fellow inmate, a paralegal, who will 17 soon be unable to assist further. (ECF No. 22 at 2.) Plaintiff further claims that “the 18 complexity of this case [ ] will require significant research and investigation which is 19 virtually impossible for this Plaintiff to conduct.” (Id.) However, the information before 20 the Court suggests that this is a relatively straightforward Fourteenth Amendment case 21 that does not exceed Plaintiff’s abilities. Contrary to Plaintiff’s assertions, the 22 allegations in the FAC are not novel or complex. To date, Plaintiff has been able to 23 navigate civil procedure, articulate his arguments, and communicate with the Court 24 without the assistance of counsel. Plaintiff survived the screening process; amended his 25 Complaint; and filed motions to proceed in forma pauperis, for extension of time, and 26 for appointment of counsel. (See ECF Nos. 2, 4, 5, 7, & 22.) Now, Plaintiff declares for 27 the first time that he is unable to continue the litigation. (See ECF No. 22 at 2.) Yet, 2 Montano v. Solomon, No. 7-cv-0800-KJN-P, 2010 U.S. Dist. LEXIS 113788, at *23 (E.D. 3 Cal. Oct. 18, 2010) (denying a motion to appoint counsel where the plaintiff “adequately 4 presented, albeit through another inmate, the salient factual allegations of th[e] case”). 5 Based on the foregoing, Plaintiff has not established that this case is “exceptional” 6 or that the issues in it are particularly complex. Factors such as indigency, incarceration, 7 and being untrained in law and procedure are difficulties that any imprisoned litigant 8 would have while proceeding pro se. While the Court is sympathetic to these factors, 9 they do not constitute “exceptional circumstances.” See, e.g., Wood v. Housewright, 10 900 F.2d 1332, 1335–36 (9th Cir. 1990) (affirming denial of a motion to appoint counsel 11 where the plaintiff complained that he had limited access to law library and lacked a 12 legal education); Sanford v. Doe, No. 8-cv-1049-H-PCL, 2009 U.S. Dist. LEXIS 134362, at 13 *4 (S.D. Cal. Sept. 18, 2009) (denying a motion to appoint counsel based on a lack of 14 exceptional circumstances where the plaintiff “argue[d] that counsel would ‘better 15 enable’ him to present evidence and cross examine witnesses”). Accordingly, Plaintiff 16 fails to satisfy the second factor of the Wilborn test. 17 C. Access to the Courts Claim 18 Plaintiff’s Motion also asserts an access to the courts claim based on “limited 19 access to the [l]aw [l]ibrary.” (See ECF No. 22 at 2.) The Supreme Court has held it is 20 “beyond doubt that prisoners have a constitutional right of access to the courts.” 21 Bounds v. Smith, 430 U.S. 817, 821 (1977). In Bounds, the Supreme Court explained that 22 this right “requires prison authorities to assist inmates in the preparation and filing of 23 meaningful legal papers by providing prisoners with adequate law libraries or adequate 24 assistance from persons trained in the law.” Id. at 828. However, to establish a 25 violation of this right, the plaintiff must demonstrate he has suffered an “actual injury” 26 by showing that “shortcomings in the prison library or legal assistance program have 27 hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim.” 2 deadline or to present a claim.” Id. at 348 (citation modified). Lack of access to the law 3 library can provide grounds for an actual injury, as inmates must be allowed “a 4 reasonable amount of time in the law library,” in addition to writing materials and 5 postage for communication with courts. Gluth v. Kangas, 951 F.2d 1504, 1508–10 (9th 6 Cir. 1991). Individuals have “a right not to be arbitrarily prevented from lodging a 7 claimed violation of a federal right in a federal court.” Lewis, 518 U.S. at 381–82 8 (Thomas, J., concurring). 9 Here, Plaintiff contends that his limited access to the law library is aggravated by 10 the fact that “the [c]lerks assigned have no real knowledge or experience to assist in 11 preparation of any cause of action whether [c]ivil or [c]riminal.” (ECF No. 22 at 2.) Thus, 12 Plaintiff argues that appointment of counsel is necessary because he has been 13 prevented from spending as much time as he would like in the law library, and the 14 assigned clerks are unhelpful. (See id.) However, Plaintiff has met all filing deadlines to 15 date and has not shown that he has suffered actual prejudice. See Alvarez v. Hill, 518 16 F.3d 1152, 1155 n.1 (9th Cir. 2008) (explaining that a failure to show that a nonfrivolous 17 claim has been frustrated is fatal to a Bounds claim). Plaintiff fails to explain what 18 aspects go beyond “the incidental (and perfectly constitutional) consequences of 19 conviction and incarceration,” thereby preventing him from litigating his case. See 20 Lewis, 518 U.S. at 355. Thus, Plaintiff fails to state an actual injury and his access to the 21 courts argument fails.1 22 / / 23 24 25 1 Nevertheless, the Court is sympathetic to the challenges of litigating a civil case pro se while incarcerated. Should Plaintiff require additional time to meet a specific deadline, he may file a motion 26 for an extension of time setting forth good cause for the extension of that deadline. See, e.g., Carroll v. Warden, No. 19-cv-02126-BAS-KSC, 2021 U.S. Dist. LEXIS 93469, at *5 (S.D. Cal. May 17, 2021) (denying 27 a request for law library access but noting that, “to the extent restricted access to resources impede 1 V. CONCLUSION 2 The evidence before the Court does not demonstrate that Plaintiff enjoys a 3 || likelihood of success on the merits or that he is unable to articulate his claims without 4 assistance of counsel. Therefore, the Court finds that Plaintiff has failed to make the 5 || requisite showing of “exceptional circumstances.” See Agyeman, 390 F.3d at 1103. 6 || Further, Plaintiff has not shown that he has suffered an “actual injury” to prevail on an 7 || access to the courts claim. See Lewis, 518 U.S. at 343. Plaintiff’s Motion for 8 || Appointment of Counsel [ECF No. 22] is DENIED without prejudice. 9 IT IS SO ORDERED. 10 Dated: July 20, 2026 = _ 2 FF D Honorable Michael S. Berg United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28