Doktoreztk v. Morales et al, No. 3:2009cv01288 - Document 8 (S.D. Cal. 2009)
Court Description: ORDER denying 7 Plaintiff's Motion and Declaration for Appointment of Counsel without prejudice. Signed by Magistrate Judge Ruben B. Brooks on 9/2/09. (All non-registered users served via U.S. Mail Service).(tkl) (kaj).
Download PDF
<![CDATA[
Doktoreztk v. Morales et al Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DOKTOREZTK, 12 Plaintiff, 13 v. 14 S. MORALES, 15 Defendant. ) ) ) ) ) ) ) ) ) ) Civil No. 09cv1288 JM (RBB) ORDER DENYING PLAINTIFF’S MOTION AND DECLARATION FOR APPOINTMENT OF COUNSEL [DOC. NO. 7] 16 17 Plaintiff Michael Doktoreztk, a state prisoner proceeding pro 18 se and in forma pauperis, filed a civil rights Complaint under 42 19 U.S.C. § 1983 on June 12, 2009 [doc. no. 1].1 20 constitutional right to be free from cruel and unusual punishment 21 was violated while he was in custody. 22 submitted this Motion and Declaration for Appointment of Counsel 23 [doc. no. 7], which was filed nunc pro tunc to August 17, 2009. 24 In support of his request for appointment of counsel, He alleged that his (Compl. 9-18.) Plaintiff 25 Dokrorezth asserts the following: 26 complex; (2) he is indigent and ignorant of the law; (3) he will (1) The issues in this case are 27 1 28 Because Doktoreztk’s Complaint is not consecutively paginated pleading, the Court will cite it using the page numbers assigned by the Court’s electronic case filing system. 1 09cv1288JM(RBB) Dockets.Justia.com 1 have difficulty performing research and investigation; (4) the 2 prison law library is inadequate; (5) he will not have the 3 assistance of other inmates; and (6) the trial will likely involve 4 conflicting testimony. 5 (Mot. Decl. Appointment Counsel 1-2.) 28 U.S.C. § 1915(e)(1) provides: “The court may request an 6 attorney to represent any person unable to afford counsel.” 28 7 U.S.C.A. § 1915(e)(1) (West 2009). 8 that there is generally no constitutional right to counsel in civil 9 cases.” Yet, “it is well-established United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 10 1996) (citing Hedges v. Resolution Trust Corp. (In re Hedges), 32 11 F.3d 1360, 1363 (9th Cir. 1994). 12 right to appointed counsel to pursue a § 1983 claim. 13 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. 14 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); accord Campbell v. 15 Burt, 141 F.3d 927, 931 (9th Cir. 1998). 16 have the authority “to make coercive appointments of counsel.” 17 Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989) 18 (discussing § 1915(d); see also United States v. $292,888.04 in 19 U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). 20 There is also no constitutional Rand v. Federal courts do not Nevertheless, district courts have discretion, pursuant to 28 21 U.S.C. § 1915(e)(1), to request attorney representation for 22 indigent civil litigants upon a showing of exceptional 23 circumstances. 24 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 25 1236 (9th Cir. 1984)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 26 Cir. 1991); Burns v. County of King, 883 F.2d 819, 824 (9th Cir. 27 1989). See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 28 2 09cv1288JM(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, Dokrorezth must present a 11 12 nonfrivolous claim that is likely to succeed on the merits. 13 Wilborn, 789 F.2d at 1331. 14 a cause of action for violation of his right under the Eighth 15 Amendment to be free from cruel and unusual punishment. 16 18.) 17 he was in protective custody, but Defendant Morales allowed inmates 18 from the general population to assault him. 19 Plaintiff’s Complaint purports to state (Compl. 9- In the Complaint, Plaintiff asserts that on August 27, 2007, (Id.) “[T]he treatment a prisoner receives and the conditions under 20 which he is confined are subject to scrutiny under the Eighth 21 Amendment.” 22 Eighth Amendment “requires that inmates be furnished with the basic 23 human needs, one of which is ‘reasonable safety.’” 24 (quoting Deshaney v. Winnebago County Dep’t of Soc. Servs., 489 25 U.S. 189, 200 (1989)). 26 Plaintiff from a substantial risk of serious harm at the hands of 27 other inmates is properly analyzed under the Eighth Amendment. 28 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Helling, 509 Helling v. McKinney, 509 U.S. 25, 31 (1993). The Id. at 33 A claim that Defendant failed to protect 3 See 09cv1288JM(RBB) 1 U.S. at 35); Wilson v. Seiter, 501 U.S. 294, 303 (1991); Robinson 2 v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001). 3 Although Plaintiff’s allegations are sufficient to state a 4 claim for relief, it is too early for the Court to determine 5 Dokrorezth’s likelihood of success on the merits. 6 additional factual information, the Court cannot conclude that 7 Plaintiff is likely to succeed. 8 (S.D. Cal. 1993). 9 II. 10 Without See Bailey, 835 F. Supp. 550, 552 Plaintiff’s Ability To Proceed Without Counsel To be entitled to appointed counsel, Dokrorezth must also show 11 he is unable to effectively litigate the case pro se in light of 12 the complexity of the issues involved. 13 1331. 14 See Wilborn, 789 F.2d at Courts have required that “indigent plaintiffs make a 15 reasonably diligent effort to secure counsel as a prerequisite to 16 the court’s appointing counsel for them.” 17 F. Supp. at 552. 18 to secure cousnel. 19 Attach. #1 Mem. P. & A. 1-2.) 20 diligent effort to secure counsel prior to petitioning for 21 appointment of counsel. 22 Bailey v. Lawford, 835 Plaintiff has not shown that he made any efforts (Mot. Decl. Appointment Counsel 1-2; id. Thus, he has not made a reasonably Dokrorezth claims he is unable to afford outside legal 23 counsel. (Mot. Decl. Appointment Counsel 1-2.) This argument is 24 not compelling because indigence alone does not entitle a plaintiff 25 to appointed counsel. 26 are complex and he his has limited ability to adequately conduct 27 research and prepare his case. 28 library is inadequate, and he will not have the assistance of other Plaintiff further asserts that the issues (Id.) 4 He claims that the law 09cv1288JM(RBB) 1 inmates. (Id. at 2.) Plaintiff argues that a trial would be 2 difficult because there may be conflicting testimony. 3 on these facts, Plaintiff requests a court-appointed attorney. 4 (Id. at 1-2.) (Id.) Based 5 Although Dokrorezth asserts that his access to legal materials 6 is limited, he has not presented any facts demonstrating that he is 7 being denied “reasonable” access. 8 of Corrs., 776 F.2d 851, 858 (9th Cir. 1985). 9 does not guarantee a prisoner unlimited access to a law library. See Lindquist v. Idaho State Bd. “[T]he Constitution 10 Prison officials of necessity must regulate the time, manner, and 11 place in which library facilities are used.” 12 not shown that he is denied reasonable access to a law library or 13 other means of conducting legal research, or that he is subjected 14 to burdens beyond those ordinarily experienced by pro se 15 plaintiffs. 16 Id. Plaintiff has Plaintiff has filed a Complaint, Motion and Declaration Under 17 Penalty of Perjury in Support of Motion to Proceed in Forma 18 Pauperis, and a Motion and Declaration for Appointment of Counsel 19 which are adequate in form [doc nos. 1, 2, 7]. 20 claims these filings were prepared by another inmate who will no 21 longer assist him. 22 A at 1.) 23 with the assistance of counsel.” 24 Wilborn, 789 F.2d at 1331 (explaining, “a pro se litigant will 25 seldom be in a position to investigate easily the facts necessary 26 to support the case[]”). 27 appointed counsel if he can show “that because of the complexity of 28 the claims he [is] unable to articulate his positions.” But Dokrorezth (Mot. Decl. Appointment Counsel Attach. #2 Ex. “[A]ny pro se litigant certainly would be better served Rand, 113 F.3d at 1525; see also But Plaintiff is only entitled to 5 Rand, 113 09cv1288JM(RBB) 1 F.3d at 1525. Dokrorezth has not pointed to anything in the record 2 which makes this case “exceptional” or the issues in it 3 particularly complex. 4 Additionally, factual disputes and anticipated cross- 5 examination of witnesses do not indicate the presence of complex 6 legal issues warranting a finding of exceptional circumstances. 7 See Rand, 113 F.3d at 1525 (holding that while the appellant might 8 have fared better with counsel during discovery and in securing 9 expert testimony, “this is not the test[]”). The “exceptional 10 circumstances” required for appointment of counsel pursuant to 28 11 U.S.C. § 1915(e)(1) are absent. 12 Because Plaintiff has failed to demonstrate either a 13 likelihood of success on the merits of his claims or an inability 14 to represent himself (beyond the ordinary burdens encountered by 15 prisoners representing themselves pro se), Plaintiff’s motion is 16 DENIED without prejudice. 17 IT IS SO ORDERED. 18 19 Dated: September 2, 2009 ____________________________ Ruben B. Brooks United States Magistrate Judge 20 21 cc: Judge Miller All Parties of Record 22 23 24 25 26 27 28 6 K:\COMMON\BROOKS\CASES\1983\PRISONER\DOKTOREZTK1288\Order re appointment of counsel.wpd 09cv1288JM(RBB)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
