Clinton v. Allison

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARKEITH CLINTON, Case No.: 23-cv-1471-CAB-SBC CDCR #AY-1315, 12 ORDER DENYING PLAINTIFF’S Plaintiff, 13 MOTION FOR APPOINTMENT OF v. COUNSEL [ECF NO. 22] 14 KATHLEEN ALLISON, Secretary of 15 CDCR, et al., 16 Defendants. 17 18 Plaintiff Markeith Clinton, proceeding pro se and in forma pauperis, is currently 19 incarcerated at the Richard J. Donovan Correctional Facility. On September 16, 2024, 20 Plaintiff filed a Motion for Appointment of Counsel. (ECF No. 22.) For the reasons set 21 forth below, the motion is DENIED. 22 I. BACKGROUND 23 Plaintiff initiated this lawsuit by filing a Complaint pursuant to 42 U.S.C. § 1983 on 24 August 9, 2023. (ECF No. 1.) On October 12, 2023, the Court conducted a sua sponte 25 screening of Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A(b) and dismissed the 26 complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 27 1915A(b)(1). (ECF No. 6.) Plaintiff filed a First Amended Complaint on January 30, 2024. 28 1 (ECF No. 9.) On April 29, 2024, the Court issued a Screening Order Re First Amended 2 Complaint and determined that “Plaintiff’s Eighth Amendment failure to protect 3 allegations involving John Does 1 and 2, and his conspiracy allegations involving Sgt. 4 Allen, Officer Colon, John Does 1-3, and Jane Doe 4 [were] ‘sufficient to warrant . . . an 5 answer.’” (ECF No. 10 at 19 (quoting Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 6 2012)).) The Court dismissed all other claims alleged in the First Amended Complaint. See 7 ECF No. 10. 8 On September 26, 2024, Plaintiff filed a Motion to Request Protective Order, 9 Preliminary Injunction, and Temporary Restraining Order. (ECF No. 23.) The motion is 10 currently pending before the Honorable Cathy Ann Bencivengo. (ECF No. 24.) On October 11 10, 2024, the undersigned conducted an Early Neutral Evaluation Conference and Case 12 Management Conference in this matter. (ECF No. 27.) Plaintiff participated via video 13 conference. (ECF Nos. 18, 27.) The following day, the Court issued a Scheduling Order 14 Regulating Discovery and Other Pre-Trial Proceedings. (ECF No. 28.) 15 II. LEGAL STANDARDS 16 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 17 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted); see also Palmer v. 18 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (“Generally, a person has no right to counsel in 19 civil actions.”). District courts have discretion, however, pursuant to 28 U.S.C. § 20 1915(e)(1), to appoint counsel for indigent civil litigants upon a showing of “exceptional 21 circumstances.” See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of 22 exceptional circumstances requires the Court to “consider whether there is a ‘likelihood of 23 success on the merits’ and whether ‘the prisoner is unable to articulate his claims in light 24 of the complexity of the legal issues involved.’” Harrington v. Scribner, 785 F.3d 1299, 25 1309 (9th Cir. 2015) (citation omitted). “Neither of these considerations is dispositive and 26 both must be viewed together before reaching a decision.” Wilborn v. Escalderon, 789 F.2d 27 1328, 1331 (9th Cir. 1986). 28 /// 1 III. DISCUSSION 2 Plaintiff seeks the appointment of counsel because he is unable to afford counsel, 3 feels his ability to litigate this case is limited because of his imprisonment, considers the 4 issues involved in the case to be complex, believes a lawyer would assist him in the 5 presentation of evidence, and has not been able to find counsel on his own. (Pl.’s Mot., 6 ECF No. 22 at 1-2.) 7 Certainly, any pro se litigant would benefit from the assistance of counsel. Plaintiff 8 must show, however, that he is unable to articulate his positions because of the complexity 9 of his claims. He has not done so. See Terrell, 935 F.2d at 1017 (upholding district court’s 10 refusal to appoint counsel because the plaintiff had “demonstrated sufficient writing ability 11 and legal knowledge to articulate his claim”); see also Wilborn, 789 F.2d at 1331 (“If all 12 that was required to establish successfully the complexity of the relevant issues was a 13 demonstration of the need for development of further facts, practically all cases would 14 involve complex legal issues.”) Further, “[c]oncerns regarding investigation and discovery 15 are . . . not exceptional factors,” and while a pro se litigant “may not have vast resources 16 or legal training,” these are simply among the commonly shared “types of difficulties 17 encountered by many pro se litigants.” Wells v. Washington State Dep’t of Corr., No. C13- 18 234 RJB/KLS, 2013 WL 4009076, at *1 (W.D. Wash. Aug. 5, 2013). 19 In addition, while Plaintiff has adequately articulated his claims, he offers no 20 evidence other than his own conclusory assertion to support them. “To demonstrate that he 21 has a likelihood of success at trial, Plaintiff must do more than merely allege that one of 22 his constitutional rights was violated. He must provide evidence to the effect that he has a 23 likelihood of success on the merits of his allegations.” Dickey v. Strayhorn, Case No.: 17- 24 cv-546-JLS (JLB), 2017 WL 3118797, at *1 (S.D. Cal. July 21, 2017), reconsideration 25 denied, Case No.: 17-cv-00546-JLS (JLB), 2017 WL 4271975 at *1 (S.D. Cal. Sept. 26, 26 2017). Plaintiff has therefore not shown a likelihood of success of the merits. 27 /// 28 /// 1 IV. CONCLUSION 2 Based on the foregoing, Plaintiff has not sufficiently demonstrated “exceptional 3 || circumstances” warranting the appointment of counsel. Accordingly, his Motion for 4 || Appointment of Counsel (ECF No. 22) is DENIED. 5 IT IS SO ORDERED. 6 Dated: October 16, 2024 7 By FA. ? Hon.SteveB.Chu 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28