Arellano v. Sedighi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Raul ARELLANO, Case No.: 15-cv-02059-AJB-BGS 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR APPOINTMNT OF COUNSEL 14 SEDIGHI, et al., 15 Defendants. [ECF No. 74]

18 Plaintiff Raul Arellano is a state prisoner proceeding in forma pauperis (“IFP”) and 19 pro se in this civil rights action filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983. 20 Plaintiff’s Motion for Appointment of Counsel is currently pending before the Court. (ECF 21 No. 74.) He argues that “exceptional circumstances” necessitate the appointment of 22 counsel because: (1) he needs an attorney to locate a witness who is “somewhere in the 23 streets by now”; (2) he needs to look for an expert witness; and (3) he has never taken 24 depositions before. (Id. at 1.) 25 “There is no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust 26 Corp., 32 F.3d 1360, 1363 (9th Cir. 1994); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 27 2009). Further, there is no constitutional right to a court-appointed attorney in section 1983 28 1 claims. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 2 654 F.2d 1349, 1353 (9th Cir. 1981)). District Courts have discretion, however, pursuant 3 to 28 U.S.C. § 1915(c)(1), to “request” that an attorney represent indigent civil litigants 4 upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 5 (9th Cir. 1991); Burns v. Cty. of King, 883 F.2d 819, 823 (9th Cir. 1989); Palmer, 560 F.3d 6 at 970. “A finding of exceptional circumstances requires an evaluation of both the 7 ‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims 8 pro se in light of the complexity of the legal issues involved.’ Neither of these issues is 9 dispositive and both must be viewed together before making a decision.” Terrell, 935 F.2d 10 at 1017 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 11 Here, Plaintiff’s stated inability to locate a witness who has since been released from 12 prison, to locate an expert witness, and conduct depositions, does not demonstrate 13 exceptional circumstances. See Price v. Weise, No. 16CV1174-CAB(KSC), 2019 WL 14 3887341, at *2 (S.D. Cal. Aug. 16, 2019) (inability to locate expert witness not exceptional 15 circumstance); Morris v. Barr, No. 10-CV-2642-AJB BGS, 2011 WL 3859711, at *3 (S.D. 16 Cal. Aug. 31, 2011) (finding “the potential need for experts, and [plaintiff’s] ability to 17 obtain discovery and conduct depositions are not exceptional circumstances warranting the 18 appointment of counsel”). The hardships associated with litigating Plaintiff’s case are 19 shared by all incarcerated litigants lacking legal experience. Most of Plaintiff's arguments 20 are not based on the complexity of the legal issues involved but rather on the general 21 difficulty of litigating pro se. See Wilborn, 789 F.2d at 1331 (noting that “[i]f all that was 22 required to establish successfully the complexity of the relevant issues was a demonstration 23 of the need for development of further facts, practically all cases would involve complex 24 legal issues”). 25 Additionally, Plaintiff has not demonstrated he has the financial means to hire an expert 26 even if one were to be located. As a general matter, IFP litigants must hire their own 27 experts. Sinegal v. Duarte, 11CV2534-BEN JMA, 2013 WL 5408602, at *2 (S.D. Cal. 28 Sept. 25, 2013). The IFP statute does not waive the requirement of the payment of fees or 1 ||/expenses for witnesses, including experts, in a section 1983 prisoner civil rights action. 2 || Dixon v. YIst, 990 F.2d 478, 480 (9th Cir. 1993). While the Court is cognizant of the 3 ||challenges an IFP litigant such as Plaintiff faces in retaining an expert witness, the IFP 4 ||statute does not grant the Court the authority to appoint expert witnesses on behalf of a 5 ||party. 28 U.S.C. § 1915; see also Pedraza v. Jones, 71 F.3d 194, 196 (Sth Cir. 1995). 6 || Further the Court has the ability to appoint a neutral expert under Federal Rule of Evidence 7 || 706 if it becomes necessary. 8 Plaintiffs filings to date demonstrate that he is able to understand and articulate the 9 |lessential facts supporting his claims. Plaintiff has successfully litigated his case and 10 survived a motion to dismiss his remaining claim against the remaining defendants. Thus, 11 Court finds Plaintiff has demonstrated an adequate understanding of the relevant facts 12 ||as well as the legal issues involved. Accordingly, the Court does not find exceptional 13 || circumstances warranting the appointment of counsel at this time. Plaintiff’s Motion for 14 || Appointment of Counsel (ECF No. 74) is DENIED without prejudice. 15 IT IS SO ORDERED. 16 || Dated: February 7, 2020 7 2 p ( / on. Bernard G. Skomal 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28