Holt v. Simmons

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Berdalia HOLT, Case No.: 23-cv-1618-AGS-JLB Plaintiff, 4 ORDER DENYING MOTION FOR v. COUNSEL (ECF 26) AND 5 DISMISSING CASE Erika T. SIMMONS, et al., 6 Defendants. 7 8 After plaintiff’s year-and-a-half delay in starting this case, the Court ordered her to 9 “effectuate proper service on the two defendants the Court quashed service against, or 10 otherwise prosecute the case against the other defendants” within 90 days. (ECF 23.) The 11 Court warned plaintiff to “meaningfully move the case forward by that date” or risk 12 “dismissal for failure to prosecute.” (Id.) Rather than effecting service or otherwise 13 prosecuting the suit, plaintiff requested yet more time, which the Court granted with the 14 warning: “Given the number and length of extensions and delays in this case, no further 15 extensions will be granted absent extraordinary circumstances.” (ECF 25.) This meant she 16 had another 90 days or so either to serve the two defendants against whom service was 17 quashed or move forward in any way against the other defendants she claims to have 18 served. Again, she did neither. Instead, on the last day, she moved this Court to appoint 19 counsel. 20 That request is denied. Initially, plaintiff may not qualify for recruited counsel. 21 “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 22 965, 970 (9th Cir. 2009). But in “exceptional circumstances” the court may “appoint 23 counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Id. It is unclear 24 whether the Court may do so for those like plaintiff, who were denied indigency status. 25 (See ECF 5); see also Yamano v. Hawaii Judiciary, 765 F. App'x 198, 199 (9th Cir. 2019) 26 (“The district court did not abuse its discretion by denying Yamano’s motion to appoint 27 counsel because Yamano was not proceeding in forma pauperis.”). Regardless, even if she 28 1 did qualify, to appoint counsel the court “must consider the likelihood of success on the 2 merits as well as the ability of the petitioner to articulate [her] claims pro se in light of the 3 complexity of the legal issues involved.” Palmer, 560 F.3d at 970 (cleaned up). In her 4 motion, plaintiff argues she has a “lack of knowledge of court procedures,” but doesn’t 5 explain how this shortcoming is in any way extraordinary. “Difficulties which any litigant 6 would have in proceeding” without an attorney “do not indicate exceptional factors.” Wood 7 v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir. 1990). And given potential statute-of- 8 limitations and Eleventh Amendment immunity defenses, plaintiff has not made a strong 9 showing of likelihood of success. (See ECF 16-1, at 8 (defendants already raising these 10 issues).) 11 In any event, it is time to break this endless cycle of extensions. “In determining 12 whether to dismiss a claim for failure to prosecute or failure to comply with a court order, 13 the Court must weigh the following factors: (1) the public’s interest in expeditious 14 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice 15 to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public 16 policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 17 642 (9th Cir. 2002). The first factor—the public interest in expeditious resolution— 18 “always favors dismissal.” Id. The second factor regarding the court’s need to manage its 19 docket likewise weighs in favor of dismissal, given plaintiff’s enormous delay and failure 20 to follow the Court’s orders. “It is incumbent upon the Court to manage its docket without 21 being subject to routine noncompliance of litigants.” Id. at 642. The risk of prejudice to 22 defendants (the third factor) also supports dismissal because the “law presumes injury from 23 unreasonable delay,” and plaintiff has offered no explanation of her tardiness that would 24 render it reasonable. See In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994). The fourth factor 25 concerning the availability of less drastic alternatives points toward dismissal, too. 26 Throughout this case, including plaintiff’s most recent filing, she has expressed a lack of 27 resources to pay any monetary sanction, so that remedy would be unavailing. (See ECF 26, 28 at 1.) More importantly, this Court has already tried less drastic alternatives. The extensions | || granted thus far to permit compliance “constituted an attempt at a less drastic sanction,” 2 || and “‘a district court’s warning to a party that [her] failure to obey the court’s order will 3 ||result in dismissal can satisfy the ‘consideration of alternatives’ requirement.” Ferdik v. 4 || Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), as amended (May 22, 1992). In this case, 5 || plaintiff had several extensions and a warning. Finally, the last factor—the public policy 6 || for disposition on the merits—is the only consideration that weighs against dismissal. Thus, 7 || because “at least four factors support dismissal,” the Court concludes that dismissal is the 8 || proper remedy here. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 9 Plaintiff's motion for appointment of counsel is denied. The case is dismissed 10 || without prejudice for failing to prosecute and for disobeying the Court’s order. The Clerk 11 directed to close this case. 12 ||Dated: November 14, 2024 14 Andrew G. Schopler United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28