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 PLAINTIFF’S 11 v. MOTION FOR APPOINTMENT OF COUNSEL 12 DANIEL PARAMO, et al., 13 Defendants. [ECF No. 138] 14 15 16 17 Currently before the Court is Plaintiff’s motion for appointment of counsel. ECF 18 No. 138. This is Plaintiff’s third request for appointment of counsel. See ECF Nos. 54, 57, 19 58, 87, 94, 97, 103. Plaintiff claims that he needs the assistance of counsel because his 20 “situation is dire and has become very complicated due to prison officials [sic] extensive 21 ‘retaliation’ toward him on behalf of defendants” and that he “needs to amend his 22 complaint to add additional crucial defendants to adequately litigate his civil rights 23 violation lawsuit.” ECF No. 138 at 1–2. Plaintiff also claims that he lacks legal knowledge 24 and experience and is an indigent inmate in the custody of Defendants. Id. at 3. 25 There is no constitutional right to the appointment of counsel in § 1983 cases. 26 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981) (citation omitted). However, 27 under 28 U.S.C. § 1915(e)(1), courts have the authority to “request” that an attorney 28 represent indigent persons under “exceptional circumstances.” Agyeman v. Corr. Corp. of 1 Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional circumstances demands 2 “at least an evaluation of the likelihood of the plaintiff’s success on the merits and an 3 evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of the 4 legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 5 (9th Cir. 1986)). “Neither of these factors is dispositive and both must be viewed together 6 before reaching a decision on request of counsel” under § 1915(e)(1). 7 Wilborn v. Escalderon, 789 F.2d at 1331. 8 The Court first finds that the likelihood of Plaintiff’s success on the merits is not yet 9 clear. Some of Plaintiff’s causes of actions against two Defendants survived a motion to 10 dismiss, but it is too early in the litigation to show a likelihood of success on the merits. 11 See ECF No. 85. Fact discovery has not yet been completed. See ECF Nos. 141 at 4; 98. 12 Next, the Court finds that Plaintiff is able to articulate his claims in light of the 13 complexity of the legal issues involved. Plaintiff has filed, inter alia, a first amended 14 complaint [ECF No. 3], a motion for leave to proceed in forma pauperis [ECF No. 6], a 15 response in opposition to Defendants’ motion to dismiss for failure to state a claim 16 [ECF No. 17], a motion for extension of time to file a second amended complaint 17 [ECF No. 46], three motions to appoint counsel [ECF Nos. 54, 57, 87, 138], a second 18 amended complaint [ECF No. 60], documents in opposition to Defendants’ motion to 19 dismiss the second amended complaint [ECF Nos. 69, 83, 84], a motion for reconsideration 20 of the Court’s denial to appoint counsel [ECF No. 97], a motion for extension of time to 21 file an amended complaint [ECF No. 104], a motion for indefinite postponement of 22 deposition [ECF No. 116], three requests for copies [ECF Nos. 19, 122, 140 at 2], and a 23 motion for reconsideration of the Court’s denial to indefinitely postpone Plaintiff’s 24 deposition [ECF Nos. 136, 140]. Based on the Court’s review of these and other documents 25 on the record, Plaintiff has demonstrated the ability to sufficiently articulate the facts and 26 circumstances relevant to his claims despite his lack of legal knowledge. Lanham v. 27 Kirkegard, No. CV 15-9-H-DLC-JTJ, 2015 WL 1345534, at *7–8 (D. Mont. Mar. 23, 28 2015) (“So long as a pro se litigant is able to ‘articulate his claims against the relative 1 complexity of the matter,’ the ‘exceptional circumstances’ that might require the 2 appointment of counsel do not exist.” (citing Wilborn v. Escalderon, 789 F.2d at 1331)). 3 The Court finds that Plaintiff’s First Amendment retaliation claims are straightforward and 4 not legally complex. See ECF Nos. 60, 85. 5 Finally, the Court finds that Plaintiff’s other arguments do not present an exceptional 6 circumstance to warrant the appointment of counsel. Plaintiff could have filed a motion to 7 join other parties or amend the complaint, but he did not. Plaintiff has previously 8 successfully amended his complaint [ECF Nos. 3, 60], and the Court twice extended the 9 deadline to file a motion to join other parties, to amend the pleadings, or to file additional 10 pleadings [ECF Nos. 103, 108]. Plaintiff has previously requested copies of docket sheets 11 and documents when needed. Furthermore, while Plaintiff was in an administrative 12 segregation unit (“ASU”), he was able to and did file numerous motions and other 13 documents. See e.g., ECF Nos. 106, 111 113, 116, 119, 122, 128, 130, 132. Plaintiff cites 14 retaliation as another reason for his need of counsel, but the question of retaliation lies at 15 the heart of Plaintiff’s substantive claims. Plaintiff alleges in the instant motion and in 16 previous motions that he was placed in ASU due to retaliation, but the Court finds no 17 indication that Defendants were involved with the events leading to Plaintiff’s placement 18 in ASU. See ECF No. 134 at 2–3; 123-1 at 10–15. 19 The Court finds there are no exceptional circumstances that warrant the appointment 20 of counsel at this time because Petitioner has shown that he is able to adequately articulate 21 his claims, the issues raised do not appear to be complex, and it is too early to determine 22 likelihood of success on the merits. See LaMere v. Risley, 827 F.2d 622, 626 23 (9th Cir. 1987) (affirming district court’s denial of request for appointment of counsel 24 where pleadings demonstrated petitioner had “a good understanding of the issues and the 25 ability to present forcefully and coherently his contentions”); Lanham v. Kirkegard, 2015 26 WL 1345534, at *7–8 (denying motion for appointment of counsel to plaintiff who 27 adequately articulated his claims although he is housed in administrative segregation, has 28 no ability to investigate the facts of the case, has limited access to the law library and legal 1 || materials, has no knowledge of the law, and is a mental health patient); Garcia v. Smith, 2 ||No. 10cv1187-AJB-RBB, 2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) (denying 3 ||motion to appoint counsel when it was too early to determine whether any of □□□□□□□□□□□ 4 ||claims would survive a motion for summary judgment); Puckett v. N. Kern State Prison 5 ||Employees, No. 08-1243BTMPOR, 2009 WL 3169972, at *2 (E.D. Cal. Sept. 29, 2009) 6 ||(denying motion for appointment of counsel to plaintiff who adequately articulated his 7 ||claim although prison officials refused to deliver his incoming legal mail in a reasonable 8 || time, found excuses to keep him in segregation, and limited his access to supplies and law 9 || books). Accordingly, the Court DENIES Plaintiff's motion for appointment of counsel. 10 IT IS SO ORDERED. 11 12 || Dated: May 28, 2020 NO 13 QF 14 Honorable Linda Lopez 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28