Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WALTER SAYLES, Case No.: 26-cv-0174-AJB-JLB CDR #AL-4748 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTION TO APPOINT COUNSEL v. 14 SERGEANTS AMAYA and MERCADO, 15 [ECF Nos. 27, 31] Defendants. 16 17 18 19 Before the Court is Plaintiff Walter Sayles’s (“Plaintiff”) Motion to Appoint 20 Counsel. (ECF Nos. 27, 31.) While the Court continues to be sympathetic to the challenges 21 Plaintiff faces litigating his case pro se, nothing in the present motion has convinced the 22 Court to change its earlier determination. For the reasons set for the below, the Court 23 DENIES Plaintiff’s Motion to Appoint Counsel WITHOUT PREJUDICE. 24 I. BACKGROUND 25 On January 2, 2026, Plaintiff, a state prisoner confined at Pelican Bay State 26 Penitentiary (“PBSP”) in Crescent City, California, proceeding pro se, filed this civil rights 27 action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff claims that he was subjected 28 to excessive use of force while housed at the Richard J. Donovan Correctional Facility 1 (“RJD”) in San Diego, California. (Id. at 3–6.) On February 11, 2026, the Court granted 2 Plaintiff leave to proceed in forma pauperis (“IFP”) and dismissed Plaintiff’s Complaint 3 without prejudice for failure to state a claim. (ECF No. 9.) On February 23, 2026, Plaintiff 4 filed a First Amended Complaint (“FAC”). (ECF No. 11.) On March 4, 2026, Plaintiff 5 filed a Motion to Appoint Counsel. (ECF No. 14.) 6 On April 20, 2026, the Court found that Plaintiff’s FAC adequately stated an Eighth 7 Amendment excessive force claim against Defendant Mercado1 and an Eighth Amendment 8 failure to protect claim against Defendant Amaya but failed to state a claim against any 9 other Defendant. (ECF No. 14.) Plaintiff was granted leave either to amend the complaint 10 or file a Notice of Intent to Proceed with the two adequately pleaded claims. (Id.) The 11 Court also denied, without prejudice, Plaintiff’s first Motion to Appoint Counsel. (Id.) 12 Subsequently, Plaintiff notified the Court of his election to proceed solely on the 13 Eighth Amendment claims that had survived the motion to dismiss. (ECF Nos. 18, 19, 20.) 14 Plaintiff also filed a second Motion to Appoint Counsel on May 28, 2026. (ECF No. 23.) 15 The Court again denied Plaintiff’s Motion. (ECF No. 26.) 16 On July 6, 2026, Plaintiff filed another Motion to Appoint Counsel. (ECF No. 27.) 17 Shortly thereafter, on July 20, 2026, Plaintiff filed another a “Motion to the Court,” along 18 with accompanying exhibits. (ECF No. 31.) The Court has reviewed these filings 19 carefully, and determines that the July 20, 2026, filing is a supplement to the Motion to 20 Appoint Counsel filed on July 6, 2026. This conclusion is buttressed by the opening 21 sentence in Plaintiff’s Motion to Court: “I Plaintiff Walter Sayles is [sic] producing 22 documents . . . of supporting facts to show the Court” and Plaintiff’s reference to 23 24 25 26 27 1 Defendant Mercado was originally listed as Jane Doe in the FAC but was later 28 1 “requesting [] appoint[ment] of counsel.” (Id.) Accordingly, the Court will treat these 2 filings as a single request.2 3 Defendants filed their answer to the FAC on July 17, 2026. (ECF No. 29.) 4 II. LEGAL STANDARD 5 There is no constitutional right to counsel in a civil case, and the decision to appoint 6 counsel under 28 U.S.C. § 1915(e)(1) is within “the sound discretion of the trial court and 7 is granted only in exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 8 1101, 1103 (9th Cir. 2004) (citation omitted); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 9 Cir. 1991) (noting that only “exceptional circumstances” support such a discretionary 10 appointment). Such exceptional circumstances exist where there is a cumulative showing 11 of both a likelihood of success on the merits and an inability of the pro se litigant to 12 articulate his claims in light of their legal complexity. Palmer v. Valdez, 560 F.3d 965, 13 970 (9th Cir. 2009). “Neither of these factors is dispositive and both must be viewed 14 together before reaching a decision on request of counsel . . . .” Wilborn v. Escalderon, 15 789 F.2d 1328, 1331 (9th Cir. 1986). 16 III. DISCUSSION 17 A. Likelihood of Success on the Merits 18 If a plaintiff fails to provide evidence supporting his likelihood of success at trial, he 19 or she fails the first factor set forth in Wilborn. Picart v. Gonzalez, No. 3:25-cv-01846- 20 AJB-AHG, 2026 WL 1137973, at *2 (S.D. Cal. Apr. 27, 2026) (citations omitted). A 21 plaintiff’s own assertions, without further corroboration with supporting evidence, are 22 insufficient to demonstrate the likelihood of success at trial. Bailey v. Lawford, 835 F. 23 Supp. 550, 552 (S.D. Cal. 1993). 24 25 26 27 2 To the extent, Plaintiff intended to file his “Motion to the Court” as a separate request for assistance of counsel, the Court DENIES it as MOOT as the relief requested is 28 1 Here, the evidence submitted by Plaintiff in support of his request does not 2 corroborate his allegations or demonstrate that he is likely to succeed at trial. First, Plaintiff 3 asserts that “there is evidence of the unlawful act on videotape[] . . . [showing] unnecessary 4 use of force.” ECF No. 27 at 1. However, the referenced videotape has not been provided 5 to the Court. Standing alone, Plaintiff’s conclusory assertions regarding what the purported 6 videotape will show is not evidence that he is likely to succeed on the merits of his claim. 7 Second, Plaintiff provided the Court with the reports submitted by correctional 8 officers following the June 2, 2025, incident so the Court could “get a better understanding 9 [of] what’s going on.” 3 ECF No. 31 at 1, 13–27. While these reports provide information 10 surrounding the incident that forms the basis of Plaintiff’s complaint, this is not evidence 11 that supports Plaintiff’s likelihood of success at trial. 12 Third, Plaintiff submits an educational flyer on degenerative disk disease, a list of 13 Plaintiff’s medications, and a list of Plaintiff’s ongoing medical appointments. (Id. at 7– 14 12.) These documents support Plaintiff’s contention that he suffers from back pain 15 stemming from degenerative disc disease. (See ECF No. 31.) However, the documents do 16 not establish that Defendant’s alleged unlawful acts were the cause of Plaintiff’s 17 degenerative disc disease and is not evidence supporting his likelihood of success at trial. 18 Finally, while some of Plaintiff’s claims have survived the motion to dismiss stage, 19 no substantive motions to test Plaintiff’s claims have been filed. 20 Thus, the Court concludes that Plaintiff has not satisfied the first “exceptional 21 circumstances” factor that would support his request for the appointment of counsel. At 22 23 24 3 Rather than contend outright that the incident reports establish Defendants’ unlawful 25 acts, Plaintiff provides annotations on the reports themselves. (ECF No. 31 at 13–27.) For example, Plaintiff underlines statements including “Inmate Sayles was not actively 26 resisting arrest at this time” (id. at 19), “Inmate Sayles was not actively resisting” (id. at 27 23), and “I ceased all physical force as Inmate Sayles ceased his active resistance” (id.). Plaintiff also wrote comments on the reports, including “did not resist she choked me” (id.) 28 1 this stage of the proceedings, it is still simply too soon to tell whether Plaintiff is likely to 2 succeed on the merits of any of his claims. See Agyeman, 390 F.3d at 1103; see also Stein 3 v. City of San Diego, No. 3:24-cv-00953-DMS-AHG, 2025 WL 3241125, at *2 (S.D. Cal. 4 Nov. 20, 2025) (denying motion for appointment of counsel because it was too early to 5 determine whether any of the plaintiff’s claims would be successful). 6 B. Ability of Plaintiff to Articulate His Claims 7 A litigant must meet a high bar to show that he is unable to “present his case pro se 8 in light of the complexity of the legal issues involved.” Siglar v. Hopkins, 822 Fed. Appx. 9 610, 612 (9th Cir. 2020). A pro se litigant cannot meet this bar by showing merely that he 10 would benefit from appointed of counsel. Id. (“if this were the prevailing standard, pro se 11 civil litigants would be entitled to counsel in all circumstances, not only exceptional ones”) 12 (citation omitted). Rather, the litigant must show that his particular circumstances and the 13 complexity of his case render him uniquely unable to articulate his claims. See Fierro v. 14 Smith, No. 19-16786, 2022 WL 2437526, at *1 (9th Cir. July 5, 2022) (holding that the 15 difficult circumstances a pro se prisoner faced while litigating his case did not constitute 16 exceptional circumstances because they were the same circumstances that many pro se 17 prisoner litigants face). Thus, as long as a pro se litigant is able to articulate his claim, the 18 “exceptional circumstances” that might support the appointment of counsel do not exist. 19 Jones v. Kuppinger 2:13-cv-0451 WBS AC, 2015 WL 5522290, at *3 (E.D. Cal. 20 Sept. 17, 2015). 21 Here, Plaintiff raises three new arguments as to why he is unable to present his case 22 pro se, namely: (1) he is facing retaliation from correctional officers in the form of “legal 23 mail and documents” being removed from his cell and physical assault (ECF Nos. 27 at 1; 24 31 at 1, 4–5 ); (2) the difficulty he is encountering getting necessary case-related documents 25 from the California Department of Corrections and Rehabilitation (“CDCR”) (ECF No. 27 26 at 1); (3) his stated “4.0 reading level” prevents him from taking next steps toward 27 presenting his case. (Id.) The Court will address each of Plaintiff’s arguments in turn. 28 1 1. Alleged Retaliation by Correctional Officers 2 First, Plaintiff contends that correctional officers at PBSP have retaliated against him 3 by “taking legal mail and documents out of [his] cell” (ECF No. 27 at 1) and physically 4 attacking him (ECF No. 31 at 1, 4–5). In support of these contentions, Plaintiff provided 5 a copy of the July 7, 2026, CDCR Office of Grievances decision confirming that “[s]taff 6 violated policy” by failing to secure Plaintiff’s legal materials when he was transferred 7 from RJD to PBSP. (Id. at 28–29.) Plaintiff also provided a copy of the grievance that he 8 filed with the PBSP after the alleged physical assault on May 30, 2026. (Id. at 4–5.) 9 Prisoners have a right to “litigate claims challenging their sentences or the conditions 10 of their confinement to conclusion without active interference by prison officials.” Silva 11 v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011) (overruled on other grounds). And 12 interference with that right in retaliation for a prisoner seeking access to the Court may 13 constitute a separate cause of action. Id. However, Plaintiff’s allegations, even if taken as 14 true, do not necessarily impact Plaintiff’s ability to articulate his claims in the light of their 15 legal complexity.4 See Palmer, 560 F.3d at 969 (holding that the court did not err by 16 refusing to appoint counsel to an incarcerated, pro se Plaintiff who had been denied access 17 to legal documents for multiple months because Plaintiff had sufficient access to those 18 documents leading up to the trial). Therefore, Plaintiff’s retaliation allegations do not 19 establish the exceptional circumstances required to warrant appointment of counsel. 20 2. Access to Documents 21 Next, Plaintiff contends that he is having a difficult time getting CDCR to provide 22 him with the documents he needs to prove his case and that he needs counsel to be 23 24 25 4 The Court notes that the CDCR Office of Grievances decision indicates that prison staff at PBSP’s Restricted Housing Unit (“RHU”) did not log Plaintiff’s property into the 26 PBSP Receiving and Release Property Area until June 20, 2026, 23 days after his RHU 27 placement. (ECF No. 31 at 28, 29.) To compensate Plaintiff for this violation of policy, Plaintiff was provided with “50 sheets of lined paper, 10 plain envelopes, and 20 soups.” 28 1 appointed to secure these documents and help him “gather and organize the evidence.” 2 (ECF No. 27 at 1.) While Plaintiff is correct about the necessity of securing documentary 3 and other evidence to support his claims, the need for development of further facts does 4 not establish that Plaintiff’s claims are legally complex. Wilborn, 789 F.2d at 1331. Here, 5 discovery has not yet opened but when it does Plaintiff will have every opportunity to 6 compel Defendants to turn over relevant documents. Fed. R. Civ. P. 26(b). The fact that 7 Plaintiff is currently experiencing difficulty securing the documents he believes are 8 relevant does not establish exceptional circumstances warranting appointment of counsel. 9 See Wilborn, 789 F.2d at 1331 n. 5 (“[T]he need for further factual discovery is not, by 10 itself, sufficient to establish the complexity of the legal issues.”). 11 3. Plaintiff’s “4.0 Reading Level” 12 Finally, Plaintiff contends that his “4.0 reading level” prevents him from adequately 13 presenting his case. (ECF No. 27 at 1.) However, “[c]ircumstances common to most 14 prisoners, such as a deficient general education, lack of knowledge of the law, mental 15 illness and disability, do not in themselves establish exceptional circumstances warranting 16 appointment of voluntary civil counsel.” Jones, 2015 WL 5522290, at *3. Sadly, low 17 literacy levels are common among the U.S. incarcerated population. See 34 U.S.C. 18 § 60501. Thus, a prisoner’s lack of literacy or educational attainment does not inherently 19 render them uniquely unable to articulate their claims. See Storey v. Paramo, No. 17-cv- 20 23-LAB (BGS), 2017 WL 3575526, at *5 (S.D. Cal. Aug. 18, 2017). 21 Notwithstanding Plaintiff’s asserted literacy challenges, Plaintiff has successfully 22 navigated his legal proceedings to date. Plaintiff has filed several motions with the Court, 23 including a complaint (ECF No. 1), an amended complaint (ECF No. 11), a motion to 24 proceed IFP (ECF No. 2), three motions to appoint counsel (ECF Nos. 12, 23, 27), 25 supplemental documents (ECF Nos. 31, 33) and a notice of intent to proceed (ECF No. 18). 26 And Plaintiff has demonstrated a basic understanding of the relevant legal standards 27 governing his motions for appointed counsel, e.g., Plaintiff made the requisite arguments 28 about why he cannot present his case pro se and why he is likely to succeed on the merits 1 ||ofhis claims. (See generally ECF Nos. 27, 31.) While the Court appreciates the challenges 2 || Plaintiff faces, his request for appointment of counsel based on these grounds does not 3 ||meet the high bar to show exceptional circumstances. See Shaw v. Sherman, No. 20-cv- 4 || 1875-GPC (DEB), 2021 WL 51523, at *2 (S.D. Cal. Jan. 6, 2021) (denying a petitioner’s 5 Motion for Appointment of Counsel where the petitioner “sufficiently represented himself 6 ||on multiple occasions in [the] action”). CONCLUSION 8 In sum, Plaintiff continues to articulate his claim and prosecute this case. He has 9 ||successfully stated multiple causes of action, filed several motions, and demonstrated a 10 || clear understanding of the type of information he will need to prove his case. And Plaintiff 11 obtained several relevant documents pertaining to his claims and will have ample 12 |}opportunity to obtain additional information during discovery. Therefore, the Court 13 |/concludes that at this stage of the litigation the challenges Plaintiff faces in litigating his 14 || case do not constitute exceptional circumstances warranting appointment of counsel. 15 Accordingly, the Court DENIES Plaintiffs Motion to Appoint Counsel 16 || WITHOUT PREJUDICE. 17 IT IS SO ORDERED. 18 ||Dated: August 6, 2026 - 19 Baladt n. Jill L. Burkhardt 20 ited States Magistrate Judge 21 22 23 24 25 26 27 28 °