United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE U.S. DISTRICT COURT JUDGE
Plaintiff Nathan Ray petitions the Court for appointment of
counsel. Dkt. 29. Defendants oppose the Motion. For the
reasons set forth below, the Court will DENY the Motion at
of his Complaint (Dkt. 5), Ray-an incarcerated
plaintiff-requested that the Court appoint counsel to
represent him in this case. In Magistrate Judge Ronald
Bush's Initial Review Order (Dkt. 11), the Court noted
that unlike criminal defendants, prisoners and indigents in
civil actions have no constitutional right to counsel unless
their physical liberty is at stake, Lassiter v. Dep't
of Social Services, 452 U.S. 18, 25 (1981), and whether
a court appoints counsel for indigent litigants is within the
court's discretion. Wilborn v. Escalderon, 789
F.2d 1328, 1331 (9th Cir. 1986).
The Court also reminded Ray that:
a federal court has no authority to require attorneys to
represent indigent litigants in civil cases under 28 U.S.C.
§ 1915(d). Mallard v. U.S. Dist. Court for S. Dist.
of Iowa, 490 U.S. 296, 298 (1989). Rather, when a Court
“appoints” an attorney, it can do so only if the
attorney voluntarily accepts the assignment. Id. The
Court has no funds to pay for attorneys' fees in civil
matters such as this one. Therefore, it is often difficult to
find attorneys willing to work on a case without payment,
especially in prisoner cases, where contact with the client
is especially difficult. For these reasons, Plaintiff should
attempt to procure counsel on a contingency or other basis,
if at all possible.
Dkt. 11, at 11. It appears that Ray did not try (or was
unsuccessful if he did) to retain counsel on his own.
Nevertheless, he petitions the Court a second time to appoint
counsel on his behalf.
forth in its Initial Review Order, the Court will only
appoint counsel in “exceptional circumstances.”
Dkt. 11, at 10. The determination of whether
“exceptional circumstances” exist requires the
evaluation of two factors: “(1) the likelihood of
success on the merits of the case, and (2) the ability of the
plaintiff to articulate the claims pro se in light of the
complexity of legal issues involved.” Id.
(citing Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
Initial Review Order, the Court allowed Ray to proceed on a
single cause of action: an Eighth Amendment medical treatment
claim against Defendants. Id. at 9. In his
Complaint, Ray alleges that he injured himself while
incarcerated and that Defendants knew he was injured but
failed to provide him with adequate medical treatment. As a
result of these untreated injuries, Ray asserts that he now
suffers from certain debilitating conditions. This claim is
not overly complex and Ray was able to demonstrate-at least
at this early stage of the case-that there was a likelihood
of success on his claim, thus allowing it to proceed beyond
the Initial Review stage. These factors weigh against
appointment of Counsel.
importantly, however, Ray has not pointed to any new
exceptional circumstances requiring the Court to change its
former position. Rather, Ray only states generally that:
Plaintiff's imprisonment will greatly limit his ability
to litigate. The issues involved in this case are complex,
and will require significant research and investigation.
Plaintiff has limited access to law library and limited
knowledge of the law. Plaintiff is in closed custody which
all law library request are done on Kite's which take a
week to answer.
A trial in this case will likely involve conflicting
testimony and counsel would better enable plaintiff to