Reed v. Paramo

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 MYCHAL ANDRA REED, Case No.: 18cv361-JLS-LL 10 Plaintiff, ORDER DENYING WITHOUT 11 v. PREJUDICE PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 12 DANIEL PARAMO, et al., 13 Defendants. [ECF No. 87] 14 15 16 17 Currently before the Court is Plaintiff’s third request for appointment of counsel.1 18 On October 15, 2019, nunc pro tunc, Plaintiff submitted a motion for appointment of 19 counsel that was accepted by the Court on discrepancy on October 23, 2019. ECF Nos. 86, 20 87. On October 31 ,2019, nunc pro tunc, Plaintiff submitted additional evidence in support 21 of his request for appointment of counsel that was accepted by the Court on discrepancy 22 on November 6, 2019. ECF Nos. 90, 91. In support, Plaintiff claims that he cannot 23 adequately litigate this case for the following reasons: 24 / / / 25 / / / 26 27 1 On April 25, 2019, the Court denied without prejudice Plaintiff’s requests for counsel filed on 28 1 (1) “he is now in no mental or emotional (stable) condition to further defend himself 2 adequately” due to “persistent” incidents of harassment and retaliation that make him 3 unable to sleep “due to fear of being attacked while [a]sleep” [ECF No. 87 at 1-4]; 4 (2) defendants and other non-parties have retaliated against him and hindered his 5 ability to litigate by (a) “illegally” placing him on “C” status for a total of 210 days, which 6 means that he has no privileges, including, but not limited to, “no library (no writing 7 supplies or law books to litigate adequately) and “no care package (cannot get typing 8 ribbons or accessories)” [ECF No. 91 at 1-3], (b) during a hearing for a rule violation report, 9 refusing to supply hearing-impaired Plaintiff with written notes and refusing Plaintiff’s 10 request for witnesses to testify [id. at 3], (c) improperly finding Plaintiff guilty of not 11 presenting himself during count time [id. at 4], and (d) removing Plaintiff from his 12 enrollment in Southwestern College for American sign language [id.]; and 13 (3) he requires “an attorney from the California bar association to help him litigate 14 against a well established defendant(s) (CDCR) who has utilized all its considerable 15 advantages against this indigent inmate” to hinder him from litigating adequately [id. at 6]. 16 There is no constitutional right to the appointment of counsel in § 1983 cases. 17 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981) (citation omitted). However, 18 under 28 U.S.C. § 1915(e)(1), courts are granted discretion to appoint counsel for indigent 19 persons under “exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 20 1101, 1103 (9th Cir. 2004). A finding of exceptional circumstances demands “at least an 21 evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of the 22 plaintiff’s ability to articulate his claims ‘in light of the complexity of the legal issues 23 involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 24 “Neither of these factors is dispositive and both must be viewed together before reaching 25 a decision on request of counsel” under § 1915(e)(1). Wilborn v. Escalderon, 789 F.2d at 26 1331. 27 First, the Court finds that Plaintiff is able to articulate his claims without legal 28 assistance and in light of the complexity of the issues. The Court has reviewed all of the 1 documents filed by Plaintiff in this case including, inter alia, the instant motion, an 2 amended complaint [ECF No. 3.], a motion for leave to proceed in forma pauperis [ECF 3 No. 6], a response in opposition to Defendants’ motion to dismiss for failure to state a claim 4 [ECF No. 17], a motion for extension of time to file a second amended complaint [ECF 5 No. 46], two motions to appoint counsel [ECF Nos. 54, 57], a second amended complaint 6 [ECF No. 60], and documents in opposition to Defendants’ motion to dismiss the second 7 amended complaint [ECF Nos. 69, 83, 84]. From the Court’s review of these documents, 8 Plaintiff is able to sufficiently articulate the facts and circumstances relevant to his claims. 9 The Court finds that his claims are straightforward and not legally complex. 10 Second, the Court finds that Plaintiff’s likelihood of success on the merits is not yet 11 clear. Following the District Judge’s order granting in part and denying in part Defendants’ 12 motion to dismiss the Second Amended Complaint, two of Plaintiff’s First Amendment 13 claims against two defendants survived. See ECF No. 85. However, this does not yet 14 demonstrate a likelihood of success on the merits such that his case should be classified as 15 an exceptional circumstance. See Garcia v. Smith, No. 10cv1187-AJB-RBB, 2012 WL 16 2499003, at *3 (S.D. Cal. June 27, 2012) (denying motion to appoint counsel when it was 17 too early to determine whether any of plaintiff’s claims would survive a motion for 18 summary judgment). 19 Viewing both factors together, the Court finds there are no exceptional 20 circumstances that warrant the appointment of counsel in this case at this time. See LaMere 21 v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) (affirming district court’s denial of request for 22 appointment of counsel where pleadings demonstrated petitioner had “a good 23 understanding of the issues and the ability to present forcefully and coherently his 24 contentions”); Garcia v. Smith, 2012 WL 2499003, at *3. Although Plaintiff does not feel 25 capable of litigating adequately and has suffered a temporary loss of certain privileges, 26 these do not rise to the level of exceptional circumstances. Cf. Sandin v. Conner, 515 U.S. 27 472, 485 (1995) (finding that “lawful incarceration brings about the necessary withdrawal 28 or limitation of many privileges and rights” including disciplinary action by prison officials 1 || for a wide range of misconduct (internal quotation marks and citation omitted)). Because 2 || Plaintiff has not alleged the requisite “exceptional circumstances” at this time, the Court 3 || DENIES without prejudice Plaintiff's request for appointment of counsel. 4 IT IS SO ORDERED. 5 ||Dated: November 8, 2019 XO 6 □□ S| 7 Honorable Linda Lopez United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28