Moreno v. Paramo

Opinion

i FILED 6 . 8 UNITED STATES DISTRICT COURT 9 |] _ SOUTHERN DISTRICT OF CALIFORNIA 0 □ 11 {| F RANCISCO MORENO, Case No.: 19cv1014-CAB(KSC) Plaintift ORDER DENYING MOTION - 13 V. . . REQUESTING APPOINTMENT OF 14 || DANIEL P ARAMO, Warden: COUNSEL [Doe. No. 11.] □ 15 R. WALKER, M.D.; TRILUU,M.D.; and DARRYL BATES, M.D., . 16 Defendants. 17 | . □ is || 19 . 20 Plaintiff Francisco Moreno, a state prisoner proceeding pro se and in forma 21 pauperis, filed this action pursuant to Title 42, United States Code, Section 1983, 22 || alleging that primary care physicians at the Richard J. Donovan Correctional Facility 23 || were deliberately indifferent to his serious medical needs when they denied him medical 24 || treatment and intervention while he was experiencing chest pains, difficulty breathing, 25 |/and other serious medical problems. [Doc. No. 1.] Before the Court is plaintiff's Motion 26 |} Requesting Appointment of Counsel. [Doc. No. 11] For the reasons outlined more fully 27 || below, the Court finds that plaintiff's Motion Requesting Appointment of Counsel must 28 ||be DENIED.

In his Motion Requesting Appointment of Counsel, plaintiff argues that the Court 2 ||should appoint counsel in this case for several reasons. First, plaintiff has limited 3 knowledge of the law. Second, plaintiff is unable to afford counsel. Third, plaintiff 4 || believes the issues in the case are complex and will require significant research and investigation. Fourth, his claims involve medical treatment. Fifth, trial is likely to 6 || involve conflicting testimony, so an attorney would “better enable plaintiff to present 7 evidence and cross examine witnesses,”. [Doc. No. 11, at p. 2.] 8 An indigent’s right to appointed counsel has been recognized to exist “only where 9 the litigant may lose his physical liberty if he loses the litigation.” Lassiter v. Dep ’t of Soc. 10 || Servs. of Durham Ciy., N.C, 452 U.S. 18, 25 (1981). District Courts generally lack 11 || authority to require counsel to represent indigent prisoners in Section 1983 cases. Mallard 12 || v. U.S. Dist. Court for S. Dist. of lowa, 490 U.S. 296, 298-309 (1989). However, in certain 13 “exceptional circumstances,” the Court may request the voluntary assistance of counsel. 14 || Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), IS || “A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” Terrell, 935 F.2d at 1017 18 (internal citations omitted). “Neither of these factors is dispositive and both must be 19 viewed together before reaching a decision.” Jd. (internal citation omitted). 20 Here, there is currently no basis to support a finding of exceptional circumstances. 21 ||First, the record is not sufficiently developed, so the Court cannot determine the likelihood 22 success on the merits. Second, there is nothing from which the Court could conclude 23 ||plaintiff lacks the ability to articulate and prosecute his claims pro se. Plaintiff has 24 demonstrated a knowledge of the essential facts supporting his claim, which appear 25 |jrelatively straightforward and uncomplicated. Plaintiff's Complaint survived the initial 26 || screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A, and an Answer has been filed. 27 ||[Doc. No. 5.] Therefore, plaintiff has clearly shown an ability to effectively articulate his 28 || claims and communicate with the Court in this action.

1 [Doc. No. 5.] Therefore, plaintiff has clearly shown an ability to effectively articulate his 2 claims and communicate with the Court in this action. eee 3 Third, a pro se prisoner’s inability to afford an attorney, standing alone, is not 4 jj/enough to show exceptional circumstances. This and other hardships imposed by 5 |lincarceration “are difficulties which any litigant would have in proceeding pro se; they.do 6 indicate exceptional factors.” Wood v. Housewright, 900 F.2d 1332, 1335-1336 (9th 7 1990). 8 Finally, pro se litigants are afforded some leniency to compensate for their lack of 9 training. “In civil rights cases where the plaintiff appears pro se, the court must 10° construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” Jackson 11 Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal citation omitted). This also applies to 12 ||motions. Bernhardt v. Los Angeles Cty., 339 F.3d 920, 925 (9th Cir, 2003), Accordingly, 13 |/ plaintiff's pro se status will be taken into consideration by the Court when his filings are 14 ||reviewed. 15 Based on the foregoing, the Court finds that plaintiff has not shown there are 16 “exceptional circumstances” for the appointment of counsel in the case. Accordingly, IT 17 IS HEREBY ORDERED that plaintiff's Motion for Appointment of Counsel is DENIED, 18 ||[Doc. No. 11.] □□ 19 ITIS SO ORDERED. Hay )) 20 ||Dated: Janu 2020 “uifi} 21 hi a □ 9 Hon. Kafen S. Crawford : . United States Magistrate Judge 23 □ 24 25 26 27 28