Davall v. Cordero

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DAVALL, CDCR #AW-8294, Case No.: 3:20-cv-1968-JLS-KSC 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO APPOINT COUNSEL 14 A. CORDERO; D. WHITE; WHITMAN, [Doc. No. 19] 15 Defendants. 16 17 Plaintiff Joseph Davall (“plaintiff”) is proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. § 1983, alleging defendants violated his rights 19 under the United States Constitution. See Doc. No. 1. Before the Court is plaintiff’s 20 Motion for Appointment of Counsel (“Motion” or “Mot.”). Doc. No. 19. For the reasons 21 set forth below, the plaintiff’s Motion is DENIED WITHOUT PREJUDICE. 22 I. BACKGROUND 23 On October 5, 2020, plaintiff filed this action, alleging that defendants violated his 24 rights under the Eighth and Fourteenth Amendments. See Doc. No. 1 at 3-5.1 On 25 November 5, 2020, the District Court, having conducted the sua sponte screening required 26 27 28 1 All page references are to the ECF-generated page numbers. 1 by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), dismissed plaintiff’s claims against defendant 2 White but determined that plaintiff alleged sufficient factual content to survive initial 3 screening as to his Eighth Amendment claim against defendants Cordero and Whitman. 4 Doc. No. 4 at 8-9. On November 18, 2020, plaintiff moved for reconsideration of the sua 5 sponte dismissal of defendant White, which the District Court denied. See Doc. Nos. 7, 6 11. On December 2, 2020, plaintiff moved for a preliminary injunction and temporary 7 restraining order, which remains pending before the District Court (the “TRO Motion”). 8 See Doc. No. 9. 9 On January 14, 2021, plaintiff filed the instant Motion. Plaintiff requests that the 10 Court appoint counsel to represent him in this matter for the following reasons: (1) he is 11 currently unable to access the law library due to COVID-19 related restrictions in place 12 where he is incarcerated; (2) his case will require “significant and confidential” discovery; 13 (3) litigating his case will require “professional” cross-examination of defendant and other 14 witnesses; (4) he may need to amend his complaint; and (5) the issues presented in his case 15 are “complex.” See Mot. at 1-2. 16 II. DISCUSSION 17 “There is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 18 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). However, District Courts have discretion 19 to “request” that an attorney represent indigent civil litigants upon a showing of 20 “exceptional circumstances.” See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 21 Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). “That a pro se litigant may be 22 better served with the assistance of counsel is not the test.” Okler v. MCC IMU Prison, 23 No. 3:18-cv-05458-RJB-TLF, 2019 WL 461143, at *1 (W.D. Wash. Feb. 5, 2019). Instead, 24 the Court “must determine whether a) there is a likelihood of success on the merits; and b) 25 the prisoner is unable to articulate his claims in light of the complexity of the legal issues 26 involved.” Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014). “None of these factors 27 is dispositive; rather they must be considered cumulatively.” Id. 28 / / 1 A. Likelihood of Success 2 Plaintiff does not identify, nor does the Court’s independent review of the record 3 reveal, any facts to support a finding that he may succeed on the merits of his claims. 4 Although his claims against the individual defendants survived initial screening, the 5 District Court’s determination that plaintiff may be able to state a claim against defendant 6 “by no means demonstrates that [he] is likely to win.” Ortega v. CSP-SAC Prison Officials, 7 No. 2:08–00588 SOM, 2010 WL 2598228, at *1 (D. Haw. June 7, 2010). The Court finds 8 this factor weighs against appointing counsel to represent plaintiff in this matter. 9 B. Plaintiff’s Ability to Pursue His Claims 10 The Court is also not persuaded that plaintiff lacks the ability to pursue his claims 11 because of the complexity of the legal issues presented. In the three and a half months 12 since initiating this action, plaintiff has consistently demonstrated the ability to effectively 13 articulate his claims. In addition to a complaint that survived initial screening, plaintiff has 14 also filed a Motion to Proceed In Forma Pauperis, a Motion for Reconsideration, the TRO 15 Motion, the instant Motion, and an objection to the District Court’s allowance of a late 16 opposition to his TRO Motion. See Doc. Nos. 1, 2, 7, 9, 17 and 19. The Court finds 17 plaintiff’s litigation activity thus far demonstrates that he understands basic litigation 18 procedure and can advocate on his own behalf. 19 While it may be true that “professional representation” would assist plaintiff with 20 the necessary “investigation and discovery” to litigate his claim, Mot. at 1, the hardships 21 plaintiff has identified are shared by most (if not all) incarcerated litigants and do not 22 “indicate exceptional factors.” See Wood v. Housewright, 900 F.2d 1332, 1335–1336 (9th 23 Cir. 1990). “Even if it is assumed that [p]laintiff is not well versed in the law and that he 24 has made serious allegations which, if proved, would entitle him to relief, his case is not 25 exceptional.” Williams v. Lozano, No. 1:15-cv-01250-BAM (PC), 2018 WL 558765, at *1 26 (E.D. Cal. Jan. 25, 2018). The Court finds that that fact plaintiff will (or may) need to 27 conduct discovery, take testimony from witnesses, or amend his pleadings are not 28 exceptional to his case but are common among all incarcerated litigants and indeed all 1 || participants in civil litigation. Moreover, the Court understands that plaintiff's access to 2 || the law library may be limited due to increasing restrictive measures put in place to prevent 3 spread of COVID-19. Mot. at 1. Yet, this difficulty is also common most incarcerated 4 || litigants today. For that reason, the Court will consider any reasonable request by plaintiff 5 || for additional time to meet the Court’s deadlines, and will grant any such request for good 6 || cause shown. 7 |\|C. Conclusion 8 For the reasons set forth above, the Court finds plaintiff has not met his burden to 9 ||establish exceptional circumstances warranting the appointment of counsel to represent 10 || plaintiff in this matter at taxpayer expense. Plaintiff may renew his request if his situation 11 changes such that he can make the necessary showing that he is both likely to succeed on 12 || the merits of his claims, and unable to competently articulate those claims. Cano, 739 F.3d 13 1219. 14 ORDER 15 Plaintiff's Motion for Appointment of Counsel [Doc. No. 19] is DENIED 16 ||} WITHOUT PREJUDICE. 17 || IT IS SO ORDERED. 18 Dated: January 25, 2021 YX) 19 Mfficae _———_ 20 Hori. Karen S. Crawford United States Magistrate Judge 21 22 23 24 25 26 27 28