Barraillier v. Muniz

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA MARIO F. BARRAILLIER, Case No. 19-cv-08330-WHO (PR) Plaintiff, ORDER DENYING MOTION FOR v. 9 THE APPOINTMENT OF COUNSEL 10 J. ALVAREZ, et al., Dkt. No. 21 Defendants.

13 INTRODUCTION 14 Plaintiff Barraillier moves for the appointment of counsel. (Dkt. No. 21.) His grounds are that (i) he would be better represented by having counsel; (ii) he lacks the money to hire counsel; and (iii) his age and physical and mental infirmities make it difficult for him to prosecute this federal habeas action. The first two grounds, while no doubt true, are insufficient under our precedents. The third is also insufficient; despite Barraillier’s quite serious history of mental and physical infirmities, he is able to represent himself without counsel at this stage in the proceedings. All his filings are clear, well- reasoned, and appear in highly readable handwriting. Furthermore, the issues in his complaint are not complex, and he has ably articulated them. The motion is DENIED.

23 BACKGROUND 24 Barraillier contends that his physical and mental infirmities weigh in favor of the appointment of counsel. In support, he attached to his motion a neurological consultation report dated July 15, 2009 from the Kern County Neurological Medical Group, Inc. (Mot.

27 for Counsel, Neurological Consultation Report, Dkt. No. 21 at 16.) The salient fact is that days. (Id.) He had surgery, soon after which he had a seizure. (Id.) According to the report, his last seizure was nine months before the date of the report, and that (therefore) he had not had a seizure in 2009 thus far. (Id.) He was taking Dilantin and gabapentin. (Id.) He claimed to have had a stroke six months earlier and was experiencing left-sided weakness. (Id.) 6 According to the report, his seizures were diagnosed as “post traumatic migraine headaches and post traumatic seizures.” (Id.) The scanning indicated “a history of bifrontal and contusions and encephalomalacia.” (Id.) An MRI from January 2006 “revealed small areas of encephalomalacia and gliosis in the bilateral anterior frontal lobe and left anterior temporal lobe consistent with posttraumatic brain injury.” (Id.) His brain scan was “unremarkable,” however. (Id.) He presented as “pleasant and easily examined,” and “mentally alert” and “appropriate.” (Id.) This neurological report is eleven years old. In his motion, Barraillier contends that he is an epileptic. (Id. at 3.)

14 Set against this serious history of mental and physical infirmities are the quite clear filings presented by Barraillier. Without exception, his contentions are clearly and orderly presented, both in articulating his thoughts and arguments and in presenting them to the Court in his quite clear handwriting. This includes his 17-page complaint and the present 18-page motion.

19 Also set against this history is that the issues presented in the complaint are not complex. Barraillier alleges that he was attacked by guards and that other staff failed to intervene. There is nothing novel or complex about these facts or the legal issues they present.

23 STANDARD OF REVIEW 24 The decision to request counsel to represent an indigent litigant under 28 U.S.C. § 1915 is within “the sound discretion of the trial court and is granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of “exceptional circumstances” requires an evaluation of the likelihood of the plaintiff’s se in light of the complexity of the legal issues involved. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Neither the need for discovery, nor the fact that the pro se litigant would be better served with the assistance of counsel, necessarily qualify the issues involved as complex. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997).

6 In the Ninth Circuit, roughly one-third of new civil litigants in district court are not represented by counsel. United States Courts for the Ninth Circuit, 2017 Annual Report 40 (2018), available at https://www.ca9.uscourts.gov/judicial_council/ publications/ AnnualReport2017.pdf. Most, but by no means all, of these litigants are incarcerated.

10 There is no doubt that not having a lawyer puts a party at a disadvantage in our adversarial system of justice, and the high percentage of civil litigants who cannot afford one threatens our ability to dispense equal justice to rich and poor alike, as the judicial oath demands.

13 That said, I am compelled to follow controlling precedent and determine if “exceptional circumstances” exist to appoint counsel in the cases before me.

15 DISCUSSION 16 At least at this stage of the proceedings, Barraillier has not shown that exceptional circumstances exist. His indigency and the possibility that he would be better served by having counsel are not exceptional circumstances. Rand, 113 F.3d at 1525.

19 Also, despite his physical and mental infirmities, Barraillier is able to represent himself in this action without counsel. His filings are clearly articulated and legibly written. This is evidenced by the fact that his 17-page complaint was served as originally filed and no amendments are required. Likewise, his present motion is roughly 18 pages of clear, well-reasoned contentions, including case citations and supporting documentation.

24 CONCLUSION 25 Barraillier’s motion for the appointment of counsel is DENIED. (Dkt. No. 21.)

26 When I review a motion for summary judgment in this case and can evaluate Barraillier’s likelihood of success on the merits, I will reconsider the necessity of appointing counsel.

1 This order terminates Dkt. No. 21.

2 IT IS SO ORDERED.

3 Dated: October 13, 2020 . MQe □ 4 ILLIAM H. ORRICK 5 United States District Judge e 12

= 17 (18