Thornton v. Schwarzenegger et al, No. 3:2010cv01583 - Document 47 (S.D. Cal. 2011)
Court Description: ORDER Denying Plaintiff's 28 Second Request for Appointment of Counsel or, Alternatively, Motion for Reconsideration. Signed by Magistrate Judge Ruben B. Brooks on 1/11/2011. (All non-registered users served via U.S. Mail Service)(jer)
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Thornton v. Schwarzenegger et al Doc. 47 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 Civil No. 10cv01583 BTM (RBB) WILLIAM CECIL THORNTON, ) ) ) Plaintiff, ) ) v. ) ) ) ARNOLD SCHWARZENEGGER, Governor ) of California; MATTHEW CATE, ) Secretary of Corrections; JOHN ) DOE LEWIS, Parole Unit ) Supervisor; MARK JOSEPH, Parole ) ) Agent; CHRISTINE CAVALIN, ) Parole Agent; JOHN DOE #1, ) Parole Agent, ) ) Defendants. ) ORDER DENYING PLAINTIFF’S SECOND REQUEST FOR APPOINTMENT OF COUNSEL OR, ALTERNATIVELY, MOTION FOR RECONSIDERATION [ECF NO. 28] Plaintiff William Cecil Thornton, a state prisoner proceeding 22 pro se and in forma pauperis, filed a Complaint on July 28, 2010, 23 pursuant to 42 U.S.C. § 1983 [ECF Nos. 1, 5]. 24 Thornton alleges that his constitutional rights to due process, 25 freedom of association, and to be free from cruel and unusual 26 punishment were violated when he was not allowed to live with his 27 wife in their home after being released on parole. 28 No. 1.) In count one, (Compl. 3, ECF In count two, Plaintiff argues that his rights to be free 1 10cv01583 BTM (RBB) Dockets.Justia.com 1 from cruel and unusual punishment, to due process, and his 2 “interest of liberty” were violated when Plaintiff was assigned to 3 a sex offender parole unit in California based on his out-of-state 4 criminal record. 5 alleges his right to equal protection of the laws was violated 6 because he was discriminated against. 7 he complains that he was “banished” from moving back in with his 8 wife in their home because he was “told it was not in[]compliance 9 with Proposition 83 or California Penal Code § 3003.5.” (Id. at 4.) Finally, in count three, Thornton (Id. at 4-5.) Specifically, (Id. at 5 10 (citation omitted).) 11 parole unit started an intimate relationship with Thornton’s wife 12 and was permitted to move into the same home with her, even though 13 Plaintiff was prohibited from doing so. 14 But another sex offender assigned to the same (Id.) On November 12, 2010, Plaintiff filed his second request for 15 court-appointed counsel. (Pl.’s Second Req. Appointment Counsel 1- 16 2, ECF No. 28.) 17 on August 25, 2010. 18 The Court, on October 4, 2010, denied Plaintiff’s motion [ECF No. 19 16]. 20 been brought as a motion for reconsideration of the Court’s order 21 denying Plaintiff appointed counsel. 22 7.1(i)(1). (Mot. Appointment Counsel 1-3, ECF No. 7.) Thornton’s second request for appointed counsel should have I. 23 24 His first request for appointed counsel was filed See S.D. Cal. Civ. L.R. DISCUSSION 28 U.S.C. § 1915(e)(1) provides, “The court may request an 25 attorney to represent any person unable to afford counsel.” 26 U.S.C.A. § 1915(e)(1) (West 2010). 27 28 28 But “it is well-established that there is generally no constitutional right to counsel in civil cases.” United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citing Hedges v. Resolution Trust Corp., 32 F.3d 1360, 10cv01583 BTM (RBB) 2 1 1363 (9th Cir. 1994)). 2 court-appointed attorney in § 1983 claims. 3 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 4 F.2d 1349, 1353 (9th Cir. 1981)); accord Campbell v. Burt, 141 F.3d 5 927, 931 (9th Cir. 1998). 6 “to make coercive appointments of counsel.” 7 States Dist. Ct., 490 U.S. 296, 310 (1989) (discussing § 1915(d)); 8 see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 9 564, 569 (9th Cir. 1995). 10 There is also no constitutional right to a Rand v. Rowland, 113 Federal courts do not have the authority Mallard v. United Nevertheless, district courts have discretion, pursuant to 28 11 U.S.C. § 1915(e)(1), to request attorney representation for 12 indigent civil litigants upon a showing of exceptional 13 circumstances. 14 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 15 1236 (9th Cir. 1984)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 16 Cir. 1991); Burns v. County of King, 883 F.2d 819, 824 (9th Cir. 17 1989) (“Appointment of counsel in civil matters in the Ninth 18 Circuit is restricted to ‘exceptional circumstances’”) (quotation 19 omitted). 20 plaintiff seeking assistance requires at least an evaluation of the 21 likelihood of the plaintiff’s success on the merits and an 22 evaluation of the plaintiff’s ability to articulate his claims ‘in 23 light of the complexity of the legal issues involved.’” 24 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 25 1331 (9th Cir. 1986)). 26 and both must be viewed together before reaching a decision.’” 27 Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1331). 28 // See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, “A finding of the exceptional circumstances of the Agyeman, “‘Neither of these factors is dispositive 3 10cv01583 BTM (RBB) 1 A. 2 Plaintiff’s First Motion for Appointment of Counsel On August 25, 2010, Thornton filed a Motion for Appointment of 3 Counsel [ECF No. 7]. 4 the following: 5 imprisonment limits his ability to litigate; (3) the issues in this 6 case are complex and require significant research; (4) Thornton has 7 limited law library access and knowledge of the law; and (5) a 8 trial will likely involve conflicting testimony and legal issues. 9 (Mot. Appointment Counsel 2-3, ECF No. 7.) In support of his request, Plaintiff asserted (1) He is unable to afford an attorney; (2) his On October 4, 2010, 10 this Court issued an Order Denying Plaintiff’s Motion for 11 Appointment of Counsel [ECF No. 16]. 12 Thornton “failed to demonstrate either a likelihood of success on 13 the merits or an inability to represent himself (beyond the 14 ordinary burdens encountered by prisoners representing themselves 15 pro se) . . . .” 16 ECF No. 16.) 17 The Court stated that (Order Den. Pl.’s Mot. Appointment Counsel 10, On November 1, 2010, Thornton filed a notice of appeal of the 18 denial of his request for appointment of counsel [ECF No. 25]. 19 notice of appeal was received by the Clerk of Court for the Ninth 20 Circuit and was assigned docket number 10-56733 [ECF No. 26]. 21 Ninth Circuit issued a Time Schedule Order that same day [ECF No. 22 27]. 23 filed his Second Request for Appointment of Counsel with the 24 district court [ECF No. 28]. 25 The The On November 12, 2010, while his appeal was pending, Plaintiff Then, on December 9, 2010, Thornton filed with this Court an 26 Ex Parte Application to Stay Proceedings Until Ninth Circuit Ruling 27 on Denial of Appointment of Counsel [ECF No. 40]. 28 2010, the Ninth Circuit dismissed the appeal for lack of 4 On December 10, 10cv01583 BTM (RBB) 1 jurisdiction, stating that a denial of appointment of counsel in 2 civil cases is not appealable. 3 56733 (9th Cir. Dec. 10, 2010) (order) (citing 28 U.S.C. § 1291 4 (West 2010); Wilborn, 789 F.2d 1328) [ECF No. 41]. 5 this Court issued an Order denying as moot Plaintiff’s request to 6 stay the proceedings. 7 B. 8 9 Thornton v. Schwarzenegger, No. 10- That same day, (Mins., Dec. 10, 2010, ECF No. 42.) Plaintiff’s Second Motion for Appointment of Counsel In support of his second request for court-appointed counsel, filed on November 12, 2010, Plaintiff asserts the following: (1) 10 He is unable to afford an attorney; (2) his imprisonment limits his 11 ability to litigate; (3) the issues in this case are complex and 12 require significant research; (4) Thornton has restricted ability 13 to make photocopies and access legal material in the law library, 14 and he has limited knowledge of the law; (5) Plaintiff has 15 attempted but failed to secure counsel; and (6) a trial will likely 16 involve conflicting testimony and legal issues. 17 Appointment Counsel 1-2, ECF No. 28.) 18 attorneys and agencies he contacted in an attempt to obtain 19 counsel, and he attaches to his Motion two replies he received in 20 response. 21 (Pl.’s Second Req. Thornton lists the names of (Id. at 2.) Liberally construing Thornton’s pleading, as required by 22 Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Court finds that 23 the motion Plaintiff filed on November 12, 2010, is more properly 24 construed as a Motion for Reconsideration of the Court’s October 4, 25 2010 Order Denying Plaintiff’s Motion for Appointment of Counsel 26 [ECF No. 16]. 27 orders are brought pursuant to Civil Local Rule 7.1(i). 28 Civ. L.R. 7.1(i). Motions or applications for reconsideration of prior S.D. Cal. In an application for reconsideration, a party 5 10cv01583 BTM (RBB) 1 seeking the same relief as that previously denied must set forth 2 “(1) when and to what judge the [prior] application was made, (2) 3 what ruling or decision or order was made thereon, and (3) what new 4 or different facts and circumstances are claimed to exist which did 5 not exist, or were not shown, upon such prior application.” 6 7.1(i)(1). 7 within twenty-eight days after the prior order was entered. 8 7.1(i)(2). 9 Id. at Further, any motion for reconsideration must be filed Id. at Here, Thornton seeks the same relief (court-appointed counsel) 10 as that previously denied. 11 7; Order Den. Pl.’s Mot. Appointment Counsel 10, ECF No. 16; Pl.’s 12 Second Req. Appointment Counsel 1-2, ECF No. 28.) 13 not complied with the first two requirements of Civil Local Rule 14 7.1(i)(1), and his Motion may be denied on this basis. 15 Civ. L.R. 7.1(i)(1) (requiring that the movant state when the prior 16 application was made and what the ruling was), S.D. Cal. Civ. L.R. 17 41.1(b) (stating that a litigant’s failure to follow a district 18 court’s local rules is a proper ground for dismissal). 19 Plaintiff did not file his second request for counsel until 20 November 12, 2010, which is more than twenty-eight days after the 21 October 4, 2010 Order. 22 Court ignores the defects in Plaintiff’s request, he has not 23 demonstrated that the Court’s prior order should be different. 24 (Mot. Appointment Counsel 2-3, ECF No. Plaintiff has See id. at 7.1(i)(2), 41.1(b). S.D. Cal. Moreover, Even if the Thornton does not expressly state what “new or different facts 25 and circumstances” exist now that did not exist when he filed his 26 first Motion for Appointment of Counsel. 27 Appointment Counsel 1-3, ECF No. 28.) 28 facts would change the Court’s decision that there are no 6 (See Pl.’s Second Req. Nor does he express how such 10cv01583 BTM (RBB) 1 exceptional circumstances that warrant appointing an attorney to 2 represent him. 3 Thornton makes essentially the same arguments in his second request 4 for court-appointed counsel as he did in the first request. 5 (Compare Mot. Appointment Counsel 2-3, ECF No. 7 (arguing he cannot 6 afford counsel, his imprisonment hinders his ability to litigate, 7 the issues are complex, his access to legal material is limited, 8 and a trial would involve conflicting testimony), with Pl.’s Second 9 Req. Appointment Counsel 1-2, ECF No. 28 (stating he cannot afford (See id.); S.D. Cal. Civ. L.R. 7.1(i)(1). In fact, 10 an attorney, his imprisonment limits his ability to litigate, the 11 issues are complex, his access to legal material and to 12 photocopying is restricted, he has tried to secure counsel, and a 13 trial would involve conflicting testimony).) 14 The only different fact and circumstance Plaintiff alleges is 15 that he has “attempted to contact different attorneys to represent 16 him in this matter and has only received repl[ie]s which stated 17 they could not help him.” 18 2, ECF No. 28). 19 entities that he contacted, and he includes the two responses he 20 received. 21 LLP, explained in its letter to Plaintiff that the lawyers could 22 not assist him because they were not taking new cases brought by 23 prisoners. 24 Inc. wrote to Thornton that its office does not represent prisoners 25 on civil complaints. 26 (Pl.’s Second Req. Appointment Counsel To that end, Thornton lists twelve individuals or (Id. at 2, 5-8.) (Id. at 6.) The law firm Rosen, Bien, and Galvan, Similarly, Federal Defenders of San Diego, (Id. at 8.) Courts have required that plaintiffs demonstrate they are 27 indigent and that they have made a reasonably diligent effort to 28 secure counsel before they are eligible for an appointed attorney. 7 10cv01583 BTM (RBB) 1 Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. Oct. 25, 1993); 2 see also Verble v. United States, No. 07cv0472 BEN (BLM), 2008 U.S. 3 Dist. LEXIS 107867, at *5 (S.D. Cal. May 22, 2008). 4 a plaintiff satisfies the two initial requirements of indigence and 5 a diligent attempt to obtain counsel, “he is entitled to 6 appointment of counsel only if he can [also] show exceptional 7 circumstances.” 8 F.2d at 1331). 9 But even after Bailey, 835 F. Supp. at 552 (citing Wilborn, 789 Thornton has satisfied the threshold requirements by showing 10 that he is indigent and has made a reasonably diligent effort to 11 secure counsel. 12 No. 28); see Bailey, 835 F. Supp. at 552. 13 determine whether Plaintiff can show exceptional circumstances 14 justifying court-appointed counsel by examining the likelihood of 15 Thornton succeeding on the merits and his ability to proceed 16 without counsel. 17 1331; Bailey, 835 F. Supp. at 552. 18 attempt to secure counsel does not change the conclusion that his 19 case does not involve exceptional circumstances. (Pl.’s Second Req. Appointment Counsel 1-2, ECF The Court must therefore Agyeman, 390 F.3d at 1103; Wilborn, 789 F.2d at As discussed below, Thornton’s 20 1. Likelihood of Plaintiff’s Success on the Merits 21 To receive court-appointed counsel, Thornton must present a 22 nonfrivolous claim that is likely to succeed on the merits. 23 Wilborn, 789 F.2d at 1331. 24 his constitutional rights to due process, freedom of association, 25 equal protection of the laws, and to be free from cruel and unusual 26 punishment were violated. 27 allegations arise from events that occurred while Plaintiff was Plaintiff alleges in the Complaint that (Compl. 3-5, ECF No. 1.) These 28 8 10cv01583 BTM (RBB) 1 incarcerated at R.J. Donovan State Prison (“Donovan”) and after he 2 was released on parole.1 3 (Id.) In count one, Thornton asserts he had been incarcerated for a 4 parole violation and was released on November 10, 2007. (Id. at 5 3.) 6 that stated I would not be allowed to live at my home with my wife 7 because of provisions of Proposition 83, that was applied to me 8 because of [a] 1987 Tennessee case.” 9 rises to the level of a constitutional violation of his rights to “[B]efore my release[] I was served with papers on 9-17-07 (Id.) Plaintiff claims this 10 due process, freedom of association, and to be free from cruel and 11 unusual punishment. 12 (Id.) In count two, Plaintiff contends that on November 21, 2007, he 13 was “assigned to a GPS unit of parole and given very overbroad 14 conditions of parole” as a result of his out-of-state criminal 15 record. 16 parole [and] to an Agent Christine Cavalin.” 17 argues that this constitutes a violation of his rights to be free 18 from cruel and unusual punishment and to due process. 19 (Id. at 4.) “I was assigned to a sex offender unit of (Id.) Thornton (Id.) Additionally, in count three, Plaintiff maintains that in 20 November 2007, he was not allowed to reside with his wife in their 21 home because he was “told it was not in compliance with Proposition 22 83 or California Penal Code § 3003.5.” 23 another sex offender in Thornton’s parole unit, Richard Lilly, 24 moved into Plaintiff’s residence. 25 [intimate] relationship with my wife and was allowed to move into 26 the very home I was told was out of compliance to me as a sex (Id. at 5.) (Id.) But in 2008, “[Lilly] started an 27 28 1 Currently, Thornton is incarcerated at the California Correctional Institution at Tehachapi, California. (Id. at 1.) 9 10cv01583 BTM (RBB) 1 offender.” 2 against, in violation of his right to equal protection of the laws. 3 (Id.) 4 (Id.) Plaintiff asserts that he is being discriminated Inmates may not be deprived of “life, liberty, or property 5 without due process of law.” Wolff v. McDonnell, 418 U.S. 539, 556 6 (1974). 7 violation by arguing that the defendants failed to employ fair 8 procedures before depriving him of a protected liberty interest. 9 See Zinermon v. Burch, 494 U.S. 113, 127 (1990); Kentucky Dep’t of 10 Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Hewitt v. Helms, 459 11 U.S. 460, 466 (1983); Walker v. Sumner, 14 F.3d 1415, 1419 (9th 12 Cir. 1994) (discussing liberty interest arising out of disciplinary 13 proceedings). 14 Process Clause and the laws of the states. 15 Corrs., 490 U.S. at 460; Hewitt, 459 U.S. at 466. 16 interest protected by state law is generally limited to freedom 17 from restraint that “imposes atypical and significant hardship on 18 the inmate in relation to the ordinary incidents of prison life.” 19 Sandin v. Connor, 515 U.S. 472, 483-84 (1995). An individual may allege a procedural due process A protected liberty interest may arise under the Due Kentucky Dep’t of But the liberty 20 As for a prisoner’s right to freedom of association, “‘[a] 21 prison inmate retains those First Amendment rights that are not 22 inconsistent with his status as a prisoner or with the legitimate 23 penological objectives of the corrections system.’” 24 California, 543 U.S. 499, 510 (2005) (quoting Pell v. Procunier, 25 417 U.S. 817, 822 (1974)). 26 are, by necessity, restricted and “may be curtailed whenever the 27 institution’s officials, in the exercise of their informed 28 discretion, reasonably conclude that such associations . . . Johnson v. The associational rights of prisoners 10 10cv01583 BTM (RBB) 1 possess the likelihood of disruption to prison order or stability, 2 or otherwise interfere with the legitimate penological objectives 3 of the prison environment.” 4 Inc., 433 U.S. 119, 132 (1977); Rizzo v. Dawson, 778 F.2d 527, 532 5 (9th Cir. 1985). 6 Jones v. N.C. Prisoners’ Labor Union, Although an inmate has the right to be free from cruel and 7 unusual punishment, “the treatment a prisoner receives and the 8 conditions under which he is confined are subject to scrutiny under 9 the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 10 (1993). 11 with the basic human needs, one of which is ‘reasonable safety.’” 12 Id. at 33 (quoting DeShaney v. Winnebago County Dep’t of Soc. 13 Servs., 489 U.S. 189, 200 (1989)). 14 Unusual Punishment Clause, a prison official must have a 15 ‘sufficiently culpable state of mind.’” 16 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 297 17 (1991). 18 The Eighth Amendment “requires that inmates be furnished “To violate the Cruel and Farmer v. Brennan, 511 Moreover, “[i]nmates are protected under the Equal Protection 19 Clause against invidious discrimination.” 20 No. C07-5426RBL-KLS, 2008 U.S. Dist. LEXIS 80776, at *13 (W.D. 21 Wash. Sept. 3, 2008) (citing Wolff, 418 U.S. at 556; Lee v. 22 Washington, 390 U.S. 333, 334 (1968)). 23 protection claim, “a plaintiff must show that the defendants acted 24 with an intent or purpose to discriminate against the plaintiff 25 based upon membership in a protected class.” 26 152 F.3d 1193, 1194 (9th Cir. 1998). 27 race, religion, national origin, and poverty. 28 Parole & Probation Comm’n, 785 F.2d 929, 932-33 (11th Cir. 1986). 11 Johnson v. Van Boening, To state an equal Barren v. Harrington, Protected classes include Damiano v. Florida 10cv01583 BTM (RBB) 1 Further, the Fourteenth Amendment is not violated by unintentional 2 conduct that may have a disparate impact. 3 U.S. 229, 239 (1976). 4 Washington v. Davis, 426 Although Thornton’s allegations may be sufficient to state a 5 claim for relief, it is still too early for the Court to determine 6 Plaintiff’s likelihood of success on the merits. 7 additional factual information, the Court cannot conclude whether 8 Thornton is likely to ultimately succeed. 9 at 552. 10 2. 11 To be entitled to appointed counsel, Thornton must also 12 demonstrate that he is unable to effectively litigate the case pro 13 se in light of the complexity of the issues involved. 14 F.2d at 1331. 15 request for attorney representation. 16 assertion that he cannot afford counsel by referring to his request 17 to proceed in forma pauperis. 18 Counsel 1, ECF No. 28.) 19 pauperis status [ECF No. 5], his argument is not persuasive because 20 indigence alone does not entitle a plaintiff to appointed counsel. 21 Next, Thornton realleges that his imprisonment will limit his Without See Bailey, 835 F. Supp. Plaintiff’s Ability To Proceed Without Counsel Wilborn, 789 Plaintiff makes several arguments to support his First, he repeats his (Pl.’s Second Req. Appointment Even though he was granted in forma (Id.) Although he asserts that his access to 22 ability to litigate. 23 legal materials is limited, Plaintiff has not demonstrated that he 24 is being denied “reasonable” access. 25 Bd. of Corrs., 776 F.2d 851, 858 (9th Cir. 1985). 26 Constitution does not guarantee a prisoner unlimited access to a 27 law library. 28 manner, and place in which library facilities are used.” See Lindquist v. Idaho State “[T]he Prison officials of necessity must regulate the time, 12 Id. 10cv01583 BTM (RBB) 1 (citation omitted). 2 reasonable access to a law library or other means of conducting 3 legal research, or that he is subjected to burdens beyond those 4 ordinarily experienced by plaintiffs who represent themselves. 5 Thornton has not shown that he does not have The Plaintiff again maintains that the issues in the case are 6 complex and will require significant research and investigation. 7 (Pl.’s Second Req. Appointment Counsel 1-2, ECF No. 28.) 8 Thornton has not alleged that he lacks reasonable access to the law 9 library or other means of performing legal research. But See 10 Lindquist, 776 F.2d at 858. 11 are greater than those typically encountered by pro se plaintiffs. 12 Nor has he shown that his limitations Further, Thornton contends that his ability to access legal 13 materials and make photocopies is restricted and that he has 14 limited knowledge of the law. 15 Counsel 2, ECF No. 28.) 16 the basis for his claims. 17 motions for leave to proceed in forma pauperis, for appointment of 18 counsel, for an extension of time to respond, for ex parte 19 communication with the Court, and to stay the proceedings [ECF Nos. 20 2, 7, 28, 29, 38, 40]. 21 denial of his Motion for Appointment of Counsel [ECF Nos. 16, 25- 22 27], the denial of his Ex Parte Motion for Production [ECF Nos. 21. 23 30], and the denial of his ex parte request for unlimited pro se 24 privileges in law the library [ECF Nos. 22, 31]. 25 suggest Thornton can adequately navigate the legal process. 26 Plummer v. Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996) (finding the 27 district court did not abuse its discretion in denying plaintiff 28 counsel, in part because plaintiff adequately filed a complaint and (Pl.’s Second Req. Appointment Plaintiff’s Complaint adequately alleges Additionally, Thornton was able to file Also, Plaintiff has appealed this Court’s 13 These filings See 10cv01583 BTM (RBB) 1 other pretrial materials). 2 be better served with the assistance of counsel.” 3 at 1525; see also Wilborn, 789 F.2d at 1331 (“[A] pro se litigant 4 will seldom be in a position to investigate easily the facts 5 necessary to support the case.”) 6 to appointed counsel if he can show “that because of the complexity 7 of the claims he [is] unable to articulate his positions.” 8 113 F.3d at 1525. 9 that makes this case “exceptional” or the issues in it particularly 10 11 “[A]ny pro se litigant certainly would Rand, 113 F.3d But a plaintiff is only entitled Rand, Thornton has not shown anything in the record complex. In his second request for counsel, Plaintiff asserts that he 12 has attempted but failed to secure counsel. 13 Appointment Counsel 3, 6, 8, ECF No. 28.) 14 this allegation in his first request. 15 Counsel 2-3, ECF No. 10.) Plaintiff has made a reasonably diligent 16 effort to obtain counsel. (See Pl.’s Second Req. Appointment 17 Counsel 3, 6, 8, ECF No. 28.) 18 does not establish exceptional circumstances. 19 Supp. at 552 (stating that if a plaintiff demonstrates indigence 20 and a diligent effort to obtain counsel, he must still show 21 exceptional circumstances); Agyeman, 390 F.3d at 1103 (noting that 22 counsel is appointed only in exceptional circumstances). 23 (Pl.’s Second Req. Thornton did not make (See Mot. Appointment But as previously noted, this alone See Bailey, 835 F. Finally, Thornton again complains that an attorney would help 24 him present evidence and cross-examine witnesses at trial due to 25 the likelihood of conflicting testimony. 26 Appointment Counsel 2, ECF No. 28.) 27 anticipated cross-examination of witnesses do not indicate the 28 presence of complex legal issues warranting a finding of 14 (Pl.’s Second Req. Factual disputes and 10cv01583 BTM (RBB) 1 exceptional circumstances. 2 that while the appellant might have fared better with counsel 3 during discovery and in securing expert testimony, this is not the 4 test). 5 See Rand, 113 F.3d at 1525 (holding Accordingly, the “exceptional circumstances” required for 6 appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) are 7 absent. 8 No. 16.) 9 success or an inability to represent himself. (See also Order Den. Mot. Appointment Counsel 9-10, ECF Plaintiff has again failed to show a likelihood of (See id.) 10 Thornton’s new allegation that he attempted to secure counsel is 11 helpful to the Court’s analysis, but it does not change the result 12 because there are no exceptional circumstances. 13 Mot. Appointment Counsel 9-10, ECF No. 16); S.D. Cal. Civ. L.R. 14 7.1(i)(1). 15 of Counsel, or Motion for Reconsideration, is DENIED. (See Order Den. Accordingly, Plaintiffs Second Request for Appointment 16 IT IS SO ORDERED. 17 DATE: January 11, 2011 ______________________________ Ruben B. Brooks United States Magistrate Judge 18 19 cc: 20 Judge Moskowitz All Parties of Record 21 22 23 24 25 26 27 28 15 K:\COMMON\BROOKS\CASES\1983\PRISONER\THORNTON1583\Order re 2nd appointment of counselv2.wpd 10cv01583 BTM (RBB)
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