Bolden v. Peraza

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DWAYNE BOLDEN, JR., Case No.: 3:19-cv-01022-AJB-AHG 12 Plaintiff, ORDER:

13 v. (1) DENYING PLAINTIFF’S 14 MOTION FOR APPOINTMENT OF DEPUTY RUDY PERAZA, et al., COUNSEL; and 15 Defendants. 16 (2) GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT 17 18 [ECF Nos. 12, 14]

19 Before the Court are two motions filed by Plaintiff Anthony Dwayne Bolden, Jr. 20 (“Plaintiff”), seeking the appointment of counsel and to add defendants through an 21 amended pleading. ECF Nos. 12, 14. Plaintiff, proceeding pro se and in forma pauperis, is 22 currently incarcerated at the George F. Bailey Detention Facility in San Diego, California. 23 ECF Nos. 1, 3. For the reasons set forth below, the Court DENIES the request to appoint 24 counsel and GRANTS leave to amend the Complaint. 25 I. PROCEDURAL HISTORY 26 Plaintiff filed his initial complaint on May 31, 2019, alleging civil rights violations 27 against four defendants under 42 U.S.C. § 1983. ECF No. 1. On June 6, 2019, the Court 28 1 granted Plaintiff’s request to proceed in forma pauperis. ECF No. 3. However, pursuant to 2 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), the Court sua sponte dismissed Plaintiff’s 3 claims against Defendant “San Diego Sheriff Department” because the Sheriff’s 4 Department is not a suable entity under § 1983 as well as his non-cognizable property 5 damage claim against Defendant “Sergeant Brewer.” Id. The Court permitted Plaintiff’s 6 excessive force claims against individual Defendants Deputy Rudy Peraza and Deputy 7 David Fazivae to go forward. Id. 8 On August 29, 2019, Plaintiff’s summons for Defendant Peraza was properly served, 9 while the summons for Defendant Fazivae was returned unexecuted. ECF Nos. 6–7. 10 Defendant Peraza filed an Answer on September 10, 2019. ECF No. 10. On October 1, 11 2019, Plaintiff filed the instant motions to appoint counsel and to amend his pleading to 12 add defendants. ECF Nos. 12, 14. 13 II. PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 14 District courts may appoint counsel to “any person unable to afford counsel.” See 28 15 U.S.C. § 1915(c)(1); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 16 However, “[t]here is no absolute right to counsel in civil proceedings.” Hedges v. 17 Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). Before a court can exercise its 18 discretion, a civil plaintiff must make a reasonably diligent effort to obtain counsel. Bailey 19 v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993). Additionally, courts must determine 20 whether “exceptional circumstances” warrant the appointment of counsel by evaluating 21 “the likelihood of [a plaintiff’s] success on the merits and the ability of the plaintiff to 22 articulate his claims pro se in light of the complexity of the legal issues involved.” Terrell, 23 935 F.2d at 1017 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); 24 see also Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015). However, neither 25 factor is dispositive and “both must be viewed together before reaching a decision.” Id. 26 Here, Plaintiff fails to demonstrate he has made any reasonably diligent effort to 27 obtain counsel. Further, Plaintiff offers no evidence to substantiate his motion by showing 28 that “exceptional circumstances” warrant appointment of counsel. ECF No. 12. 1 Specifically, the only claims remaining in the case are his excessive force claims against 2 two individual Defendants for a single incident that appears to have taken place in a matter 3 of minutes in the San Diego County Jail. See ECF No. 1. Plaintiff fails to explain why these 4 relatively straightforward claims raise any complex legal issues. Moreover, although 5 Plaintiff’s motion cites several benefits of legal counsel, Plaintiff offers no substantive 6 explanation as to why he cannot adequately pursue his claim. Having reviewed Plaintiff’s 7 Complaint and his other filings in this case, the Court finds Plaintiff has consistently 8 demonstrated an impressive ability to write clear factual narratives and to cogently 9 articulate his legal claims. ECF Nos. 1, 12, 14, 15. For example, his Motion to Appoint 10 Counsel presents such well-stated arguments as: “A trial in this case will likely involve 11 conflicting testimony. A lawyer would assist Plaintiff in the presentation of evidence and 12 the cross-examination of opposing witnesses[,]” and “Plaintiff’s incarceration will greatly 13 limit his ability to litigate this case. This case will likely involve substantial investigation 14 and discovery.” ECF No. 12 ¶¶ 3-4. All of his writing is of this high caliber.1 15 Considering the lack of complexity of the legal issues in this case and Plaintiff’s 16 ability to articulate his claims, the Court finds Plaintiff has failed to show “exceptional 17 circumstances” warranting appointment of counsel. Accordingly, the Court DENIES 18 Plaintiff’s Motion for Appointment of Counsel (ECF No. 12) without prejudice to 19 refiling.2 20 21 22 1 The Court notes that many of Plaintiff’s filings have resulted in Notices of Document 23 Discrepancies prior to filing. See ECF Nos. 11, 13, 17. However, upon review, the Court finds Plaintiff’s filing discrepancies could be avoided in the future if Plaintiff reviews the 24 Federal Rules and Local Rules of this Court. 25 2 As already discussed, Plaintiff notes in his motion that counsel would be essential to 26 assist him at trial. That issue is raised prematurely. This case is still in its very early 27 stages and trial is not on the horizon. Because Plaintiff’s motion is denied without prejudice to refiling, Plaintiff is free to seek appointment of counsel again in the future 28 1 HW. PLAINTIFF’S MOTION TO ADD DEFENDANTS 2 Plaintiff moves to amend his Complaint to attempt to add a proper municipal 3 defendant and to modify the spelling of Defendant Fazivae’s name, since the San Diego 4 || Sheriff's Department was dismissed as a non-suable entity and the summons on Defendant 5 || Fazivae was returned unexecuted. See ECF No. 14. Rule 15(a)(1)(B) of the Federal Rules 6 || of Civil Procedure permits amendment of a party’s complaint once as a matter of course 7 || within 21 days of service of a responsive pleading. Fed. R. Civ. P. 15(a)(1)(B). Defendant 8 || Peraza’s Answer was filed on September 10, 2019. ECF No. 10. Therefore, when Plaintiff 9 || filed his Motion on October 1, 2019, he was within the 21-day window to file an amended 10 |/complaint as a matter of right. Accordingly, the Court GRANTS Plaintiff's Motion (ECF 11 ||No. 14). However, despite clearly explaining his proposed amendments, Plaintiff did not 12 ||separately attach a proposed amended complaint to his motion. Plaintiff must submit a 13 || proper amended complaint to the Court upon receipt of this Order. 14 IV. CONCLUSION 15 For the foregoing reasons, Plaintiff's Motion for Appointment of Counsel (ECF No. 16 is DENIED WITHOUT PREJUDICE and Plaintiff's Motion to Add Defendants 17 ||(ECF No. 14) is GRANTED. Plaintiff is ORDERED to properly submit a separate 18 ||amended complaint incorporating his proposed amendments by November 8, 2019. 19 IT IS SO ORDERED. 20 || Dated: October 15, 2019 01 _ArwiorwH. Xyolard Honorable Allison H. Goddard 22 United States Magistrate Judge 23 24 25 26 27 28