2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 HERIBERTO TORIBIO-RUIZ, Case No. 3:17-cv-00674-MMD-CLB

7 Plaintiffs, ORDER v. 8

9 ISIDRO BACA, et al.,

10 Defendants.

11 12 Following screening and summary judgment proceedings pro se Plaintiff Heriberto 13 Toribio-Ruiz has one claim for Eighth Amendment deliberate indifference to medical needs 14 under

remaining for trial. (ECF No. 3 at 5-7; ECF Nos. 45, 57, 58.) Before 15 the Court is Plaintiff’s motion for appointment of counsel (“Motion”). (ECF No. 64.) For 16 reasons explained below, the Court will deny the Motion.1 17 There is no constitutional right to appointed counsel in a § 1983 action. E.g., Rand 18 v. Rowland,

(9th Cir. 1997), opinion reinstated in pertinent part, 154

, 954 n.1 (9th Cir. 1998) (en banc). The provision in

(e)(1), 20 however, gives a district court the discretion to request that an attorney represent an 21 indigent civil litigant.

(e)(1) (“The court may request an attorney to 22 represent any person unable to afford counsel.”); see, e.g., Wilborn v. Escalderon, 789

, 1331 (9th Cir. 1986). Yet, the statute does not give the court the authority to 24 compel an attorney to accept appointment, such that counsel remains free to decline the 25 request. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa,

(1989). 26 Furthermore, while the decision to request counsel lies within the discretion of the district 27 28 1The Court has also reviewed Defendant’s response (ECF No. 65). 2 circumstances.” Terrell v. Brewer,

(9th Cir. 1991). “A finding of 3 exceptional circumstances requires an evaluation of both the likelihood of success on the 4 merits and [the plaintiff's ability to] articulate his claims pro se in light of the complexity of 5 the legal issues involved.”

(quoting Wilborn, 789 F.2d at 1331) (internal quotation marks 6 omitted). 7 Exceptional circumstances do not exist in this instance. Plaintiff has not 8 demonstrated a likelihood of success on the merits as there are genuine disputes of fact 9 as to whether Defendants violated Plaintiff’s Eighth Amendment rights. (ECF No. 57 at 6- 10 9; ECF No. 58.) Plaintiff only makes conclusory assertions that this case is complex 11 because “medical issues are complex.” (ECF No. 64 at 12.) To be sure, an appointment 12 of counsel is generally appropriate in Eighth Amendment cases alleging deliberate 13 indifference to serious medical needs where an incarcerated plaintiff is expected to find a 14 medical expert. See Clemons v. Hill,

, 886 (9th Cir. 2018).2 But the issue 15 in this case is deliberate indifference, which is not a complex question, nor will it require 16 expert assistance to understand. (See ECF No. 3 at 5-7; ECF No. 57 at 6-9.) Moreover, 17 even though Plaintiff contends that other inmates assisted him in submitting his medical 18 kites, drafting his Complaint, and submitting this Motion, he has demonstrated that he can 19 articulate his claims to the Court. (ECF Nos. 34, 35.) And while Plaintiff also argues that 20 he does not know how to conduct a trial and has no experience preparing jury instructions, 21 proposing voir dire, or drafting motions in limine (ECF No. 64 at 12), such lack of 22 experience is unexceptional compared to most prisoner civil rights cases. Because 23 Plaintiff has not demonstrated exceptional circumstances, the Court denies the Motion. 24 /// 25 26 2The Court finds Clemons persuasive and applies it here. Although not binding 27 precedent, unpublished decisions have persuasive value and may be relied on. See, e.g., In re Ocwen Loan Servicing LLC Litigaton, No. 3:16-cv-200-MMD-WGC,

690353, at *2 (D. Nev. Feb. 19, 2019); see also Ninth Cir. R. 36-3 (“Unpublished Ninth Circuit decisions may be cited commencing with decisions issued in 2007.”). 1 It is therefore ordered that Plaintiff's motion for appointment of counsel (ECF No 2 || 64) is denied. 3 DATED THIS 21* day of September 2020. (LQ 5 / MIRANDA M. DU 6 CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28