United States District Court, D. Arizona
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
DeJuan Williams is an inmate at the Arizona State Prison
Complex-Eyman. He brought this civil rights action pursuant
to 42 U.S.C. § 1983. Doc. 1. The amended complaint
alleges First and Fourteenth Amendment violations arising
from policies of the Arizona Department of Corrections (ADOC)
prohibiting sexually explicit material in the prison system.
has filed a motion for appointment of counsel, claiming that
as a pro se inmate he cannot effectively investigate
essential evidence at the foundation of his claims. Doc. 68.
Magistrate Judge Deborah Fine has issued an order denying the
motion. Doc. 72. Plaintiff has appealed Magistrate Judge
Fine's order to this Court. Doc. 75.
Court has reviewed Judge Fine's order de novo and, for
reasons stated below, finds that the order is not clearly
erroneous or contrary to law. See Fed. R. Civ. P.
72(a); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). The order therefore will be affirmed.
is no constitutional right to appointed counsel in a civil
case. See Ivey v. Bd. of Regents of Univ. of Alaska,
673 F.2d 266, 269 (9th Cir. 1982). But the Court has
discretion to appoint counsel in “exceptional
circumstances.” 28 U.S.C. § 1915(e)(1). “A
finding of exceptional circumstances requires an evaluation
of both ‘the likelihood of success on the merits and
the ability of the [plaintiff] to articulate his or her claim
pro se in light of the complexity of the legal issues
involved.'” Wilborn v. Escalderon, 789
F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygant v.
Look, 718 F.2d 952, 954 (9th Cir. 1983)).
Fine found that Plaintiff has not demonstrated a likelihood
of success on the merits. Doc. 72 at 1. Plaintiff challenges
this finding, claiming that none of the publications at issue
is sexually explicit or otherwise detrimental to the safe,
secure, and orderly operation of the correctional facility.
Doc. 75 at 1-3. Plaintiff notes that he has sufficiently
stated plausible claims for relief. Id. at 3.
Court determined that the amended complaint, liberally
construed, states claims for which relief could be granted if
the allegations are proven at trial. Doc. 17 at 9. But
“without more than the bare allegations of the
[c]omplaint, it is presently impossible to determine the
likelihood of Plaintiff's success on the merits.”
Wilson v. Hardison, No. 1:09-CV-213-BLW, 2009 WL
1650459, at *4 (D. Idaho June 10, 2009); see Wilson v.
Cuevas, No. 16CV2100-BTM (MSB), 2018 WL 6436834, at *2
(S.D. Cal. Dec. 7, 2018) (finding that sufficiently pled
claims did not support the appointment of counsel because it
was premature for the court to determine the strength of the
claims); Garcia v. Smith, No. 10CV1187 AJB RBB, 2012
WL 2499003, at *3 (S.D. Cal. June 27, 2012) (“Although
Garcia's . . . claims survived Defendant's Motion to
Dismiss, it is too early to determine the likelihood of
success on the merits. Without more, it is not certain
whether any of Plaintiff's causes of action will survive
summary judgment. This factor does not support Garcia's
request for an appointed lawyer.”).
does not dispute Judge Fine's finding that he is capable
of presenting legal and factual arguments to the Court. Docs.
72 at 1-2, 75 at 3. Rather, he claims that he faces the
“complex legal issue” of being unable to
investigate evidence necessary to support his claims,
specifically, the materials claimed to be sexually explicit
and excluded by the ADOC. Doc. 75 at 4. But Plaintiff has not
shown that appointed counsel is necessary to remedy this
has not met his burden of demonstrating the requisite
exceptional circumstances for the appointment of counsel in
this civil case. See Wilborn, 789 F.2d at1331
(“If all that was required to establish successfully
the complexity of the relevant issues was a demonstration of
the need for development of further facts, practically all
cases would involve complex legal issues.”).
IS ORDERED that Judge Fine's order denying
Plaintiffs motion for appointment of counsel (Doc. 72) is