Gonzales v. Garcia

Opinion

1 2 3 4 . 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} ANTHONY C. GONZALES, CDCR Case No.: 3:19-cv-00660-GPC-RBM #AH-5287, Plaintife | ORDER DENYING PLAINTIFF'S 13 "| SECOND MOTION TO APPOINT 14 V. COUNSEL 15 NICHOLE GARCIA; JUAN FLORES, 16 Defendants. [Doc. 19.] 17 18 . 19 20 I. INTRODUCTION 21 Anthony C. Gonzales (“Plaintiff”), a California prisoner proceeding in pro per and 22 ||in forma pauperis, filed a Complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”). (See 23 || generally Docs. 1,3.) Plaintiff claims Calipatria State Prison (“Calipatria”) staff members 24 || Nichole Garcia (“Garcia”) and Juan Flores (“Flores”) (collectively “Defendants”) violated 25 || Plaintiff's Eighth Amendment right to adequate medical care. (Doc. 1 at 2-6.) 26 27 28 ' Flores filed a Motion to Dismiss on July 11, 2019, which is pending a ruling. (Doc. 7.) □□□□□□□□□□□ response to Flores’ Motion to Dismiss “concedes” to dismiss Flores as a defendant. (Doc. 14.) ]

1 Plaintiff filed an initial Motion to Appoint Counsel (“Initial Motion”) in July 2019, 2 || which the Court denied without prejudice by Order dated July 31, 2019. (Docs. 9, 13.) 3 ||Now, Plaintiff files a second Motion for Appointment of Counsel (“Second □□□□□□□□□ 4 ||(Doc. 19.) While Plaintiff's Second Motion asserts additional facts seeking to demonstrate 5 |/Plaintiffs need for appointment of counsel, Plaintiff presents no basis to justify 6 ||modification of the Court’s July 31, 2019 Order. (Docs. 13, 19.) Accordingly, Plaintiff's 7 Second Motion is DENIED, without prejudice. 8 Il. PROCEDURAL HISTORY 9 A. Complaint 10 The crux of Plaintiffs Complaint alleges Defendants engaged in conduct 11 ||deliberately indifferent to Plaintiffs serious medical needs in violation of the Eighth 12 || Amendment. (Doc. 1.) According to the Complaint, Plaintiff underwent surgery on his 13 elbow on August 17, 2018 and, post-operation, Plaintiff's primary care physician 14 ||ordered seven days of daily dressing changes to Plaintiff's surgical wound. (d. at 3.) 15 || Plaintiff claims Calipatria medical staff did not provide new wound dressing each day as 16 ||ordered. (/d.) Plaintiff claims Garcia, a licensed vocational nurse, refused to re-dress 17 || Plaintiffs surgical wound because he did not have scheduled appointments. (/d.) Plaintiff 18 || alleges his surgical wound became swollen and infected as a result of Garcia’s deliberate 19 || indifference to Plaintiff's medical needs. (/d. at 4-5.) 20 B. Initial Motion to Appoint Counsel 21 In the Initial Motion, Plaintiff alleged appointment of counsel was necessary because 22 || Plaintiff lacked materials and knowledge of the law. (Doc. 9 at 1.) The Court considered 23 || the early stage of litigation, the relatively straightforward nature of the claim and □□□□□□□□□□□ 24 ability to sufficiently articulate his claims pro se. (Doc. 13 at 3-4.) Based upon the 25 || foregoing, the Court found no exceptional circumstances existed to justify appointment of 26 counsel at the time of issuance of its Order. (/d. at 4.) However, the Court also stated, □□□□□□ 27 case proceeds beyond summary judgment, the Court may consider appointment of trial 28 counsel.” (/d.)

1 C. Second Motion to Appoint Counsel 2 Plaintiff's Second Motion seeks identical relief as the Initial Motion, however, 3 || Plaintiff raises the following additional facts and argument: Plaintiff is unable to afford 4 ||counsel; Plaintiff is incarcerated and has extremely limited access to the law library; 5 Plaintiff lacks the experience, education and means to litigate including participation in 6 || fact and expert discovery, motions practice and trial; and Plaintiff contends the issues in 7 case are complex and Plaintiff has a high likelihood of success on the merits. (Doc. 19 8 1-2.) 9 lil. DISCUSSION 10 A. Legal Standard 11 Pursuant to 28 U.S.C. § 1915(e)(1), a court may appoint counsel for indigent civil 12 || litigants under “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 13 2009) (citing Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. 14 ||denied sub nom. Gerber v. Agyeman, 545 U.S. 1128 (2005)). In determining whether 15 ||“exceptional circumstances” exist, the Court must consider “the likelihood of success on 16 ||the merits as well as the ability of the petitioner to articulate his claims pro se in light of 17 complexity of the legal issues involved.” Palmer, 560 F.3d at 970 (citing Weygandt v. 18 || Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 19 Cir. 1991). Only “rarely” will a federal court find a case to be so complex that it is 20 ||appropriate to appoint counsel for a civil litigant who faces no loss of liberty in the 21 ||controversy at hand. See Dotson v. Doctor, No. 1:14-CV-00093-LJO-SKO, 2014 U.S. 22 || Dist. LEXIS 72791, at *1 n.1 (E.D. Cal. May 27, 2014) (“[c]ounsel is appointed in [Section 23 1983 cases] only rarely, if exceptional circumstances exist”); United States v. Melluzzo, 24 ||No. CV-09-8197-PCT-MHM, 2010 U.S. Dist. LEXIS 53053, at *3 (D. Ariz. May 3, 2010) 25 ||(“appointment of counsel in a civil case is rarely invoked .. .”); see also Schwartzmiller 26 Roberts, No. 19-1276-FR, 1994 U.S. Dist. LEXIS 1620, at *3 n.1 (D. Or. Feb. 11, 1994) 27 ||(“[iJt is extremely rare that indigent civil defendants are appointed counsel in judicial 28 || proceedings”).

1 B. No Exceptional Circumstances Exist to Justify Appointment of Counsel 2 As set forth supra, Plaintiff's Second Motion asserts additional facts and argument 3 |/to support his request for appointment of counsel than those originally alleged in the Initial 4 ||Motion. (Supra, p. 3, comparing Doc. 9 with Doc. 19.) However, the additional facts 5 Plaintiff cites do not justify appointment of counsel because the underlying circumstances 6 || which existed at the time the Court issued its July 31, 2019 Order have not changed. As 7 ||the Court explained in its July 31, 2019 Order, it is difficult to determine □□□□□□□□□□□ 8 || likelihood of success on the merits because litigation is in its early stages. (Doc. 13 at 3.) 9 ||Moreover, Plaintiff's cause of action alleging an Eighth Amendment violation is not 10 sufficiently complex to warrant appointment of counsel. See Terrell, supra, 935 F.2d at 11 || 1017 (affirming denial of request for appointment of counsel and reasoning claim alleging 12 ||Eighth Amendment violations not sufficiently complex to warrant appointment of 13 || counsel). 14 While Plaintiff is incarcerated and lacks formal legal training, Plaintiff demonstrates 15 literacy and an ability to communicate through pleadings and motions to sufficiently 16 || articulate his claims pro se. See Palmer, 560 F.3d at 970 (affirming denial of appointment 17 counsel where plaintiff demonstrates ability to effectively present case). To be sure, 18 || Plaintiff has filed a coherent Complaint, the Initial Motion, a Response to Defendant 19 || Flores’ Motion to Dismiss and the instant Motion. (Docs. 1, 9, 14, 19.) Likewise, Plaintiff 20 ||appears to have adequate law library access and the ability participate in meaningful 21 ||discovery as evidenced by Plaintiffs ability to gather medical records pertinent to 22 || Plaintiffs claim and his willingness to meet and confer with opposing counsel for purposes 23 formulating a Joint Discovery Plan. (Doc. 1 at 8-56 (attaching various medical records 24 |/as exhibits); Doc. 20.) 25 In considering the nature of Plaintiff's claim together with Plaintiffs ability to 26 articulate such claim pro se, the Court does not find exceptional circumstances exist to 27 ||justify appointment of counsel at this time. If this case proceeds beyond summary 28 || judgment, the Court may consider appointment of trial counsel.

1 If Plaintiff files any subsequent motion seeking appointment of counsel before the 2 ||dispositive motion deadline (i.e., the summary judgment deadline), Plaintiff 3 ||admonished to comply with this District’s Civil Local Rules. Civil Local Rule 7.1(i)(1) 4 || governs motions for reconsideration and requires such motion to be accompanied by an 5 |\affidavit of the party setting forth “the material facts and circumstances surrounding each 6 || prior application [or motion], including . . . (1) when and to what judge the application [or 7 ||motion] was made, (2) what ruling or decision or order was made thereon, and (3) what 8 ||new or different facts and circumstances are claimed to exist which did not exist, or 9 || were not shown, upon such prior application [or motion].” CivLR 7.1(i)(1) (emphasis 10 || added). 11 IV. CONCLUSION 12 For the foregoing reasons, Plaintiff's Motion is DENIED, without prejudice. 13 IT IS SO ORDERED. 14 || DATE: October 2, 2019 15 thada Hailing (Lisa, Martleneg a 16 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28