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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Lee Michael Beitman,

Plaintiff,

v. 

S. Herrick,

Defendant.

No. CV-17-08229-PCT-JAT

ORDER 

Pending before the Court is Plaintiff’s Motion for Appointment of Counsel. (Doc. 

270). As set forth below, the Court denies the motion.

Plaintiff claims that he will not be able to represent himself at trial because he will 

be required to both ask himself questions and answer those questions before the jury, which 

the jury will “find to be a comedy.” (Doc. 270 at 2). Plaintiff also claims that because 

Defendants “have made erroneous and unreliable excuses for non-performance of 

compliance measures,” Plaintiff will need counsel “with expertise” to question Defendant

at trial. (Id. at 3). Plaintiff further contends that appointing him counsel will save the Court 

time and money, will help prevent Plaintiff from looking like a fool, will ensure a fair trial, 

and will “avoid the chances of appeal.” (Id. at 5). 

There is no constitutional right to the appointment of counsel in a civil case. See 

Ivey v. Bd. of Regents, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, 

the court may request an attorney to represent any person unable to afford one. 28 U.S.C. 

§ 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when 

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“exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 

1991). A determination with respect to exceptional circumstances requires an evaluation 

of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his 

claims pro se in light of the complexity of the legal issues involved. Id. “Neither of these 

factors is dispositive and both must be viewed together before reaching a decision.” Id.

(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

Having considered both elements, it does not appear that exceptional circumstances 

are present that would require the appointment of counsel in this case. Plaintiff is in no 

different position than many pro se prisoner litigants that lack legal training and have 

limited access to legal resources. Further, the Court does not find that this Plaintiff is more 

likely to succeed on the merits of his claims than any other pro se prisoner litigant before 

the Court.1

In addition, Plaintiff has not demonstrated that he is experiencing difficulty

litigating the case because the issues are complex. Indeed, the two remaining parties are 

the only witnesses that will be testifying at trial and Plaintiff has only identified two 

exhibits that he seeks to present to the jury. And, as noted in this Court’s Order on summary 

judgment, the only remaining issues for trial are whether Defendant Herrick was aware of 

Plaintiff’s serious medical need and failed to take any action in response to his alleged

severe pain during a period of five weeks while housed at the Kingman Facility, and 

whether Plaintiff suffered harm as a result of Defendant Herrick’s conduct. (See Doc. 198 

at 31). Moreover, Plaintiff’s Third Amended Complaint and his various motions for 

counsel and pretrial filings in this case are articulate and well-reasoned, that is, Plaintiff 

has demonstrated his ability to proceed as a pro se litigant. Thus, the Court will deny 

Plaintiff’s Motion for the Appointment of Counsel.

Accordingly,

1

Indeed, as discussed in its prior Orders regarding Plaintiff’s requests for appointment of 

counsel, the Court finds a low likelihood of success on the merits in this case because 

Defendant Herrick testified in the prior case regarding her treatment of Plaintiff’s facial 

injuries, which is central to the issues underpinning both this case and the previous one, 

and the jury found in favor of the Defendants. (See Doc. 249 at 2; Doc. 223 at 2).

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IT IS ORDERED that Plaintiff’s Motion for Appointment of Counsel (Doc. 270) 

is DENIED.

Dated this 18th day of March, 2022.

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