Carroll v. California Department of Corrections

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 ABONILICO CARROLL, Case No.: 19-cv-2126-BAS-KSC 14 Plaintiff, ORDER DENYING PLAINTIFF’S 15 v. THIRD MOTION FOR APPOINTMENT OF COUNSEL 16 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 17 [Doc. No. 69] Defendants. 18 19 20 Plaintiff Abonilico Carroll is proceeding pro se and in forma pauperis in this civil 21 rights action pursuant to 42 U.S.C. § 1983, alleging defendants violated his rights under 22 the United States Constitution. See Doc. No. 1. Before the Court is plaintiff’s renewed 23 Motion for Appointment of Counsel (“Motion” or “Mot.”). Doc. No. 69. This is plaintiff’s 24 third request for counsel. See Doc. Nos. 33, 42. For the reasons stated below, plaintiff’s 25 Motion is DENIED WITHOUT PREJUDICE. 26 I. BACKGROUND 27 On November 5, 2019, plaintiff filed a complaint alleging that defendants violated 28 his rights under the Eighth and Fourteenth Amendments. Doc. No. 1. Plaintiff’s Second 1 Amended Complaint, the operative complaint in the Action, was filed on December 21, 2 2020, and defendants answered on March 29, 2021. Doc. Nos. 30, 36. On May 7, 2021, 3 the Court issued a pretrial schedule. Doc. No. 40. Since initiating this Action, plaintiff has 4 twice moved to have counsel appointed. Doc. Nos. 33, 42. The undersigned denied both 5 motions, finding that plaintiff had not shown that he was unable to articulate his claims and 6 that he was likely to succeed on the merits of those claims. Doc. No. 34 at 5; Doc. No. 45 7 at 4. In both instances, the Court afforded plaintiff an opportunity to renew his motion if 8 he could make the necessary showing. 9 II. DISCUSSION 10 There is no absolute right to counsel in civil proceedings. See Hedges v. Resolution 11 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). However, the Court may in its discretion 12 appoint counsel to represent an indigent litigant on a showing of “exceptional 13 circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The party 14 requesting counsel must demonstrate both that he is likely to succeed on the merits of his 15 claims, and that he is unable to effectively articulate those claims. Cano v. Taylor, 739 16 F.3d 1214, 1218 (9th Cir. 2014). 17 The Court previously explained that plaintiff could renew his request for counsel “if 18 plaintiff’s circumstances change such that he can make the necessary showing that he is 19 both likely to succeed on the merits of his claims, and unable to competently articulate 20 those claims.” Doc. No. 34 at 5; Doc. No. 45 at 4. Plaintiff’s Motion does not demonstrate 21 any change in circumstances, but rather repeats arguments already considered and rejected 22 by the Court. Indeed, it appears to the Court that plaintiff has merely resubmitted his most 23 recent Motion, with the addition of three pages titled “Memorandum of Points and 24 Authorities” consisting of a string of legal citations and parentheticals. Compare Doc. No. 25 42 with Doc. No. 69. Nevertheless, the Court has considered plaintiff’s Motion anew. For 26 the following reasons, the Court finds that plaintiff has not made an adequate showing of 27 exceptional circumstances to warrant the appointment of counsel to represent him at 28 taxpayer expense. 1 First, plaintiff has not shown that he is likely to succeed on the merits of his claims. 2 Plaintiff repeats the allegations of his complaint and states that “if proved,” these 3 allegations “clearly establish a constitutional violation.” Mot. at 13. Even assuming that 4 plaintiff is correct in that regard, the question before the Court is not whether the allegations 5 state a claim but whether plaintiff is likely to prevail on that claim. Cano, 739 F.3d at 6 1218. “[W]hile [p]laintiff may have sufficiently pleaded a plausible … claim at this 7 preliminary stage of the proceedings, he has yet to demonstrate, and it is too soon to tell, 8 whether he is likely to succeed on the merits.” Hucker v. Daub, No. 21-CV-577 JLS 9 (AHG), 2021 WL 2550089, at *6 (S.D. Cal. June 22, 2021) (denying motion for counsel). 10 Thus, the Court finds that this factor weighs against appointing counsel to represent 11 plaintiff. See Doc. No. 34 at 3-4; Doc. No. 45 at 3. 12 Second, plaintiff has not shown that he lacks the ability to pursue his claims. 13 Plaintiff asserts that his claims are “factually complex,” and that there will be 14 “considerable” discovery in this litigation that he lacks the resources and legal training to 15 pursue. Mot. at 11-13, 17, 19, 21. The Court considered and rejected all of these arguments 16 in denying plaintiff’s previous requests for counsel. See Doc. No. 34 at 4-5; Doc. No. 45 17 at 3-4. To reiterate, plaintiff has brought a relatively straightforward claim of deliberate 18 indifference to his serious medical needs. That plaintiff will be required to marshal 19 discovery to prove his claim is not exceptional, because “practically all cases” “require 20 [the] development of further facts during litigation.” Wilborn v. Escalderon, 789 F.2d 21 1328, 1331 (9th Cir. 1986) (further finding that even though “a pro se litigant will seldom 22 be in a position to investigate easily the facts necessary to support the case,” that is not 23 enough to demonstrate exceptional circumstances). Plaintiff’s lack of legal expertise is 24 also not exceptional. See id.; see also Williams v. Lozano, No. 1:15-cv-01250-BAM (PC), 25 2018 WL 558765, at *1 (E.D. Cal. Jan. 25, 2018) (noting that most incarcerated litigants 26 are “not well versed in the law”). 27 Moreover, the record before the Court demonstrates that neither plaintiff’s allegedly 28 limited access to the law library, nor his asserted medical conditions, have prevented him 1 || from litigating his case. Indeed, since filing his previous motion for counsel, plaintiff has 2 || filed various requests for relief, including several motions for extensions of deadlines, a 3 || request for access to the library and the telephone, a Petition for Writ of Habeas Corpus for 4 ||Ad Testificandum for Production of Incarcerated Witnesses, a request for a discovery 5 || conference, a declaration, an Ex Parte Motion to Take Deposition of Defendants, and the 6 |l}instant Motion. See Doc. Nos. 44, 47, 51, 54, 57, 59, 66, and 69. Plaintiff has also filed 7 ||numerous discovery requests which were not accepted for filing pursuant to this District’s 8 || Civil Local Rules. See Doc. Nos. 50, 52, 64; see also Doc. No. 67 at 3 (noting that “[t]he 9 || Court has repeatedly admonished plaintiff that he is not to file his discovery requests with 10 ||the Court’). These filings and discovery requests demonstrate to the Court that plaintiff 11 |/understands basic litigation procedure and can competently petition the Court for relief. 12 Court thus finds that this factor weighs against appointing of counsel to represent 13 || plaintiff. 14 ORDER 15 Because plaintiff has not demonstrated either that he is likely to succeed on the 16 ||merits of his claims, or that he is unable to articulate those claims, the Court declines to 17 || appoint counsel to represent plaintiff. Accordingly, plaintiff's Motion for Appointment of 18 || Counsel [Doc. No. 69] is DENIED. As before, if plaintiffs circumstances change such 19 he can make the necessary showing that he is both likely to succeed on the merits of 20 claims, and unable to competently articulate those claims. Cano, 739 F.3d at 1218. 21 However, plaintiff is admonished that a renewed motion that merely repeats arguments 22 ||already considered and rejected by the Court will not be granted. 23 || IT IS SO ORDERED. 24 ||Dated: August 9, 2021 lj i “y) 25 WV GP —_—_ = % Hori. Karen S. Crawford United States Magistrate Judge 27 28