2014-00159761-CU-CR

Robert W. Tunstall vs. Arno Nappi

Nature of Proceeding:    Motion for Injunctive Relief

Filed By:  Tunstall, Jr., Robert William

Plaintiff’s Motion for Injunctive Relief seeks appointment of counsel in this civil case.

No summons had yet been issued and therefore no defendant has appeared.

The motion is denied.

Plaintiff has filed a Judicial Council form complaint that asserts a cause of action for
premises liability that allegedly took place in a prison.  However, none of the required
attachments containing the causes of action are attached to the Judicial Form
Complaint.  Therefore, the Court is not able to evaluate the nature or complexity of the
Complaint.

Plaintiff’s motion contains no declaration under penalty of perjury, and therefore there
is no admissible evidence of his current medical condition from which the court could
conclude that there are exceptional circumstances that would warrant appointment of
counsel.  Appointment of counsel is an extremely rare event in civil case in which a
prisoner is the plaintiff.  While an indigent prisoner who is a defendant in a civil action
threatening his or her personal or property interests has a federal and state
constitutional right of meaningful access to the courts in order to present a defense (
Yarborough v Superior Court (1985) 39 Cal.3d 197, 203-207), here, however, the
prisoner is the plaintiff.

A California inmate has a statutory right to initiate civil actions. (Pen. Code, § 2601,
subd. (d).) The corollary question is whether and under what circumstances a prisoner
may importune the Court for appointment of civil counsel.

The constitutional right of access to the courts (see, e.g., Bounds v. Smith (1977)430
U.S. 817; Wolff v. McDonnell (1974) 418 U.S. 539; Johnson v. Avery (1969) 393 U.S.
483, should be distinguished from the relief sought by plaintiff in this civil motion for
appointment of counsel brought by him. At least one Federal Circuit Court (the Sixth
Circuit) has noted it would be “an unwarranted extension of the right of access” to
require states to affirmatively assist prisoners on civil matters arising under state law.
John L. v. Adams (1992) , 969 F.2d 228, 235-36. In Knop v. Johnson (1992) 977 F. 2d
996, the Sixth Circuit reasoned that it might be a good idea for the taxpayers to provide
legal assistance for prisoners in all civil matters as to which a need can be
demonstrated, just as it might be a good idea for the taxpayers to provide such
assistance for the populace at large. The Court concluded with the obvious truth that
not every good idea is mandated by the Constitution. Knop, 977 F.2d at 1009. The
Knop court thus went on to note that if a law-abiding citizen does not have a
constitutional right of access to the public purse for legal assistance to pursue or
defend all types of legal claims, certainly it should not be the case that such a
constitutional right arises as a result of incarceration.  Id.; accord Nordgren v. Milliken,
762 F.2d 851, 855 (10th Cir.) (addressing the extent to which the assistance should be
carried out, “we should not hold that the right of access to the courts requires more
than the assistance of counsel through completion of the complaint for a federal
habeas or civil rights action”), cert. denied, 474 U.S. 1032, 88 L. Ed. 2d 573, 106 S. Ct.
593 (1985)); see, also Schrier v. Halford (1995) 60 F. 3d 1309 (8th Cir.).

Analogously, the Court has discretion over appointment of counsel for indigent litigants
in civil claims. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). “There is no
requirement that an indigent litigant be appointed pro bono counsel in civil matters,
unlike most criminal cases.” Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). As
noted in Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993), “Appointment of
counsel in a civil case is not a constitutional right. It is a privilege that is justified only
by exceptional circumstances. In determining whether exceptional circumstances exist,
courts have examined the type of case and the abilities of the plaintiff to represent
himself. This generally involves a determination of the complexity of the factual and
legal issues.” No requisite showing is made here, and there is no showing why
petitioner is not competent to proceed with his claim, nor any showing that he has
been denied access to the court or that his access is being impeded.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.

The clerk is directed to mail a copy of the minute order to the plaintiff.