United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye Chief U.S. District Court Judge
before the Court is Pro se Plaintiff Juan Martinez's
Second Motion for Appointment of Counsel. Dkt. 25. Defendant
Coburn elected not to file any response to the pending
Motion. After filing his Motion, Martinez subsequently filed
a letter with the Court (in support of his motion) noting
that he was due to have surgery. For the reasons set forth
below, the Court DENIES Martinez's Motion at this time.
outset of this case, Martinez-an incarcerated
plaintiff-requested that the Court appoint counsel to
represent him. Dkt. 4. In the Court's Initial Review
Order (Dkt. 10) the Court denied Martinez's Motion
without prejudice pending the submission of an amended
complaint. Dkt. 10, at 15. In its Successive Review Order
(Dkt. 14), the Court considered Martinez's original
Motion and ultimately denied the same. 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).
Court also reminded Martinez 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. 14, at 11. By all accounts, it appears that Martinez 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 an attorney on his behalf.
Court explained in its Successive Review Order, it will only
appoint counsel in “exceptional circumstances.”
Dkt. 14, 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
Order, the Court allowed Martinez to proceed on a single
cause of action: an Eighth Amendment
“failure-to-protect” claim, and against a single
Defendant: Deputy Warden Coburn. Id. at 8.
Complaint, Martinez alleges that when he entered prison, he
informed Coburn that he had withdrawn from all gang activity
and that, as a result, these gangs desired to physically
harm, or otherwise retaliate against him. Martinez asserts
that even though he informed Coburn of this potential danger,
he was transferred to a unit wherein gang members resided.
Ultimately, these gang members gained access to Martinez and
severely beat him.
what happened to Martinez was terrible, this claim is not
overly complex. Additionally, Martinez 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 because Martinez appears
capable of pursuing his remaining claim as a pro se
importantly, however, Martinez has not pointed to any
new exceptional circumstances requiring the Court to
change its former position. Rather, Martinez only states that
he recently had to undergo surgery and as a result, he might
be slow in ...