1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOEY SALAS, CDCR #AD-7027, Case No.: 21-cv-1786-BTM-DEB

12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. [DKT. NO. 23] 14 DR. J. CHAU; R.N. MILTIN, 15 Defendants. 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff Joey Salas’ Motion for Appointment of Counsel. Dkt. 19 No. 23. Plaintiff is a state prisoner proceeding pro se and in forma pauperis on a claim filed 20 pursuant to

. Dkt. No. 1. For the reasons discussed below, the Court 21 DENIES Plaintiff’s Motion without prejudice. 22 II. BACKGROUND 23 The Court summarized Plaintiff’s claims in the November 29, 2021 Order Screening 24 Complaint and Directing Clerk of the Court to Issue a Summons. Dkt. No. 2 at 2–3.1 25 / / 26

27 1 When referencing page numbers for documents filed with the Court, the Court’s citation 28 1 III. LEGAL STANDARD 2 An indigent’s right to appointed counsel exists “only where the litigant may lose his 3 physical liberty if he loses the litigation.” Lassiter v. Dep’t of Soc. Servs. of Durham Cty.,

U.S. 18, 25 (1981). District Courts generally lack authority to require counsel 5 to represent indigent prisoners in Section 1983 cases. Mallard v. U.S. Dist. Court for S. 6 Dist. of Iowa,

, 298–309 (1989). Appointing counsel is reserved for 7 exceptional circumstances. Terrell v. Brewer,

(9th Cir. 1991). When 8 assessing whether exceptional circumstances exist, the Court must undergo “an evaluation 9 of both ‘the likelihood of success on the merits [and] the ability of the petitioner to 10 articulate his claims pro se in light of the complexity of the legal issues involved.’” Wilborn 11 v. Escalderon,

(9th Cir. 1986). Courts must consider both factors, and 12 neither is individually dispositive.

13 IV. DISCUSSION 14 Plaintiff contends the Court should appoint counsel because: (1) “due to this being 15 a medical claim . . . it is a factually complex case”; (2) “Plaintiff has no ability to investigate 16 the facts” due to COVID-19 related lock-downs; (3) “Plaintiff’s accounts of denial of 17 medical care by Defendants will be . . . a credibility contest between Defendant and the 18 Plaintiff”; (4) “Plaintiff is an indigent prisoner with no legal training”; (5) the case is legally 19 complex; (6) Plaintiff’s “allegations if proved clearly would establish a constitutional 20 violation”; and (7) “the court will save time, court fees, unnecessary exposure to the 21 COVID-19 virus due to Plaintiff’s legal documents being exposed to the many hands of 22 both prison guards, free staff, and inmates.” Dkt. No. 23 at 9–11. 23 A. Likelihood of Success on the Merits 24 Although Plaintiff contends his allegations, if proven, would establish an Eighth 25 Amendment violation, he has not presented evidence demonstrating a likelihood of his 26 success on the merits. See, e.g., Bailey v. Lawford,

(S.D. Cal. 1993) 27 (finding where the plaintiff offered “no evidence other than his own assertions to support 28 his claims,” he failed to show likelihood of success on the merits). Moreover, at this early 1 stage of the proceedings, it is premature to evaluate the strength of Plaintiff’s claim. See, 2 e.g., Garcia v. Smith, No. 10-cv-1187-AJB-RBB,

, at *3 (S.D. Cal. June 3 27, 2012) (denying motion for appointment of counsel even though plaintiff’s complaint 4 had survived a motion to dismiss, because it was too early to determine whether any of 5 plaintiff's claims would survive a motion for summary judgment). The Court, therefore, 6 has no basis to find a likelihood that Plaintiff will succeed on the merits of his claim. 7 B. Plaintiff's Ability to Articulate his Claims 8 Plaintiff has demonstrated the ability to articulate his claims. He has prepared and 9 filed: (1) a Complaint that survived 28 U.S.C. § 1915A(b) screening (Dkt. Nos. 1, 2); (2) a 10 motion to proceed in forma pauperis (Dkt. Nos. 5, 6); (3) two motions for enlargement of 11 time (Dkt. Nos. 7, 8); (4) a motion to compel discovery (Dkt. Nos. 12, 15); and (5) this 12 Motion (Dkt. No. 23). These filings demonstrate that Plaintiff is able to articulate his claims 13 and navigate civil procedure without legal assistance, and he has done so while facing the 14 pandemic-related challenges he complains of. See Palmer v. Valdez,

, 970 15 (9th Cir. 2009) (finding exceptional circumstances were not satisfied where the District 16 Court observed Plaintiff “was well-organized, made clear points, and presented the 17 evidence effectively”).2 18

19 2 While the Court is sympathetic to the difficulties Plaintiff is experiencing due to COVID, 20 the restrictions are easing and Courts have found restrictions imposed during the height of 21 COVID did not constitute exceptional circumstances sufficient to appoint counsel. See, e.g., Pitts v. Washington, No. 18-cv-526-RSL-MLP,

, at *1 (W.D. Wash. 22 June 2, 2020) (denying motion for appointment of counsel because, “[a]lthough Plaintiff 23 contends he is unable to access the law library because of social distancing, this bare assertion does not justify the appointment of counsel at this time, nor does the COVID-19 24 pandemic.”); Faultry v. Saechao, No. 18-cv-1850-KJM-AC-P,

, at *2 25 (E.D. Cal. May 19, 2020) (denying motion for appointment of counsel and explaining that “[c]ircumstances common to most prisoners, such as lack of legal education and limited 26 law library access, do not establish exceptional circumstances supporting appointment of 27 counsel. . . . The impacts of the COVID-19 health crisis on prison operations are also common to all prisoners.”). 28 1 C. Plaintiff’s Other Arguments in Support of Exceptional Circumstances 2 Plaintiff’s remaining arguments also do not establish “exceptional circumstances.” 3 “[C]onflicting testimony [and] possible credibility issues” are common to all litigation and 4 “do not present exceptional circumstances warranting appointment of counsel . . . .” 5 Kakowski v. Allison, No. 21-CV-01675-JAH-JLB,

, at *5 (S.D. Cal. June 6 27, 2022). And a lack of legal expertise is the norm rather than an exceptional circumstance 7 in pro se civil rights cases. See, e.g., Wood v. Housewright,

(9th 8 Cir. 1990) (denying appointment of counsel where plaintiff complained that he had limited 9 access to law library and lacked a legal education); see generally Thompson v. Paramo, 10 No. 16-cv-951-MMA-BGS,

, at *1 (S.D. Cal. Sept. 13, 2018) (finding 11 a pro se prisoner civil rights plaintiff's argument that his case is factually and legally 12 complex, he has a limited ability to investigate and present his case, he needs discovery, 13 he is indigent, and he lacks legal training to be circumstances that are typical of almost 14 every pro se prisoner civil rights plaintiff are insufficient to demonstrate exceptional 15 circumstances). 16 Finally, pro se litigants are afforded some leniency to compensate for their lack of 17 legal training. “In civil rights cases where the plaintiff appears pro se, the court must 18 construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” 19 Jackson v. Carey,

(9th Cir. 2003) (internal citation omitted). This 20 leniency applies to motions. Bernhardt v. Los Angeles Cty.,

(9th Cir. 21 2003). The Court will take Plaintiff’s pro se status into consideration when reviewing his 22 filings. 23 / / 24 / / 25 / / 26 / / 27 / / 28 / / 1 Vv. CONCLUSION 2 For all of these reasons, the Court finds that Plaintiff has not demonstrated 3 |}exceptional circumstances to warrant appointment of counsel. Plaintiff's Motion 1s, 4 therefore, DENIED without prejudice to renewal at a later stage of the proceedings. 5 IT IS SO ORDERED. 6 Dated: August 10, 2022 □ PTT g Honorable Daniel E. Butcher United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28