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5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA

7 GREGORY BENNETT, Case No.: 3:19-cv-00013-MMD-WGC

8 Plaintiff, ORDER

9 v. Re: ECF Nos. 12, 13

10 JOHN KEAST, et al.,

11 Defendants.

12 13 Before the court are Plaintiff’s Motion for Appointment of Counsel (ECF No. 12) and 14 Plaintiff’s Motion to Stay Pending Reconsideration of Motion for Appointment of Counsel 15 (ECF No. 13). 16 Plaintiff’s Motion for Appointment of Counsel (ECF No. 12) is based on (1) the fact that 17 “Plaintiff is incapable of prosecuting this case without assistance of counsel,” (2) that Plaintiff has 18 “cancer in my throat and temple area of the left side of my head,” (3) that “the treatment 19 discontinued by NDOC medical some fourteen (14) weeks ago due to surgery being allegedly 20 scheduled but to date it has not occurred,” (4) that “the mass is effecting my ability to think, 21 concentrate and write,” and (5) that Plaintiff’s incarceration will greatly limit his ability to 22 effectively litigate his case. (Id. at 6.) 23 1 Plaintiff’s rationale for appointment of counsel is substantially similar to the motion (ECF 2 No. 1-2) Chief Judge Du denied in the court’s screening order (ECF No. 3). The difference 3 between that motion and the present one is that Plaintiff now complains of a pain near his temple 4 area which supposedly complicates his reasoning process (a contention which was not averred in

5 his complaint). However, Plaintiff attaches no documentation (i.e., medical records) to support 6 his claim he is not able to articulate his claims. 7 A litigant in a civil rights action does not have a Sixth Amendment right to appointed 8 counsel. Storseth v. Spellman,

(9th Cir. 1981). The United States Supreme 9 Court has generally stated that although Congress provided relief for violation of one’s civil rights 10 under

, the right to access to the courts is only a right to bring complaints to 11 federal court and not a right to discover such claims or even to litigate them effectively once filed 12 with a court. Lewis v. Casey,

(1996). 13 In very limited circumstances, federal courts are empowered to request an attorney to 14 represent an indigent civil litigant. The circumstances in which a court will grant such a request,

15 however, are exceedingly rare, and the court will grant the request under only extraordinary 16 circumstances. United States v. 30.64 Acres of Land,

(9th Cir. 1986); 17 Wilborn v. Escalderon,

(9th Cir. 1986). 18 A finding of such exceptional or extraordinary circumstances requires that the court 19 evaluate both the likelihood of Plaintiff’s success on the merits and the pro se litigant's ability to 20 articulate his claims in light of the complexity of the legal issues involved. Neither factor is 21 controlling; both must be viewed together in making the finding. Terrell v. Brewer,

, 22 1017 (9th Cir. 1991), citing

. Plaintiff equates the fact that his 23 2 1 complaint survived screening is an indication that his claims have merit. Chief District Judge 2 Miranda M. Du only stated that Plaintiff presented a “colorable deliberate indifference to serious 3 medical needs” claim. (ECF No. 3 at 5.) Additionally, Plaintiff has shown an ability to articulate 4 his claims. (ECF Nos. 1, 12, 13.)

5 In the matter of a case's complexity, the Ninth Circuit in Wilborn noted that:

If all that was required to establish successfully the 6 complexity of the relevant issues was a demonstration of the need for development of further facts, practically all 7 cases would involve complex legal issues. Thus, although Wilborn may have found it difficult to 8 articulate his claims pro se, he has neither demonstrated a likelihood of success on the merits nor shown that the 9 complexity of the issues involved was sufficient to require designation of counsel. 10 The Ninth Circuit therefore affirmed the District Court's exercise of discretion in denying 11 the request for appointment of counsel because the Plaintiff failed to establish the case was 12 complex as to facts or law.

. 13 The substantive claim involved in this action is not unduly complex. Plaintiff’s Complaint 14 was allowed to proceed on Count I alleging an Eighth Amendment deliberate indifference to 15 serious medical needs claim against Defendants Keast and Mitchell. (ECF No. 3 at 6.) 16 Similarly, with respect to the Terrell factors, Plaintiff has failed to convince the court of 17 the likelihood of success on the merits of his claims. 18 While any pro se inmate such as Mr. Bennett would likely benefit from services of counsel, 19 that is not the standard this court must employ in determining whether counsel should be appointed. 20 Wood v. Housewright,

(9th Cir. 1990). 21 The court does not have the power “to make coercive appointments of counsel." 22 Mallard v. U. S. Dist. Ct.,

(1989). Thus, the court can appoint counsel only under 23 3 1 exceptional circumstances. Palmer v. Valdez,

(9th Cir. 2009) [cert den 130

(2010)]. Plaintiff has not shown that the exceptional circumstances necessary for 3 appointment of counsel are present in this case. 4 IT IS HEREBY ORDERED that Plaintiff’s Motion for Appointment of Counsel

5 (ECF No. 12) is DENIED. 6 IT IS FURTHER ORDERED that Plaintiff’s Motion to Stay Pending Reconsideration of 7 Motion for Appointment of Counsel (ECF No. 13) is DENIED as moot. 8 Dated: March 10, 2020. 9 _________________________________ WILLIAM G. COBB 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 4