Allen v. Diaz

• Court: District Court, S.D. California
• Decided: February 17, 2023
• Docket: 3:20-cv-01389
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ALLEN, Case No.: 20-CV-1389 JLS (LR)

12 Plaintiff, ORDER DENYING MOTION FOR 13 RECONSIDERATION OF MOTION FOR APPOINTMENT OF COUNSEL 14 v.

15 (ECF No. 71) 16 DR. THERESA CURRIER, 17 Defendant. 18

19 Presently before the Court is Plaintiff Michael Allen’s (“Plaintiff” or “Allen”) 20 Motion for Reconsideration of Motion for Appointment of Counsel (“Mot.,” ECF No. 21 71). Having carefully considered Plaintiff’s Motion and the law, the Court DENIES 22 Plaintiff’s Motion for the reasons that follow. 23 BACKGROUND 24 Although this case has been pending for more than two and one-half years, it 25 remains in its infancy and has yet to proceed past the pleading stage. On July 20, 2020, 26 Plaintiff, a California state prisoner incarcerated at Calipatria State Prison at the time of 27 the relevant events, filed a civil rights action pursuant to 42 U.S.C. § 1983. See ECF No. 28 1. On November 6, 2020, the Court granted Allen’s Motion to Proceed in Forma 1 Pauperis (“IFP”) and screened his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 2 1915(b). See generally ECF No. 4. The Court granted Allen leave to file a First 3 Amended Complaint curing the pleading deficiencies identified by the Court or to file 4 notice of his intent to proceed with respect to his sole claim to survive screening, an 5 Eighth Amendment claim against Defendant Dr. Theresa Currier.1 See id. at 13–14. 6 On November 4, 2020, however, Allen filed an “Amended Complaint” (ECF No. 7 12) along with a Motion to File Excess Pages (ECF No. 6), a Motion for Appointment of 8 Counsel (ECF No. 8), and a Motion to Expedite Screening (ECF No. 10). Because the 9 Amended Complaint and accompanying motions were received by the Court via the 10 United States Postal Service, Allen’s filings were not entered into the Court’s docket until 11 November 10, 2020, after this Court’s November 6, 2020 Order granting Plaintiff’s IFP 12 Motion and screening the original Complaint issued. See ECF No. 4. On November 19, 13 2020, after Plaintiff received the Court’s November 6, 2020 Order, he filed a Motion for 14 Reconsideration and a Request for Judicial Notice. ECF Nos. 14, 16. 15 In a June 2, 2021 Order, the Court denied Plaintiff’s Motions for Reconsideration, 16 for Appointment of Counsel, and to Expedite Ruling; granted Plaintiff’s Motion to File 17 Excess Pages; dismissed Defendants Diaz and Salagado following screening of the 18 Amended Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(b); and granted 19 Plaintiff’s Requests to Serve Summons as to Dr. Currier, the sole remaining defendant. 20 See generally ECF No. 21. 21 Allen filed a Notice of Appeal with the United States Court of Appeals for the 22 Ninth Circuit on June 14, 2021. ECF No. 25. The appeal was dismissed for lack of 23 jurisdiction and the mandate issued on August 9, 2021. See ECF Nos. 31, 36. In the 24 meantime, Allen filed a Motion for Leave to File a Second Amended Complaint (“SAC”) 25 on June 28, 2021. ECF No. 29. The Court granted the motion on July 19, 2021. ECF

26 1 Prior iterations of Plaintiff’s pleadings referred to the sole remaining named Defendant as “Dr. Theresa 27 Currier-Du.” See, e.g., ECF No. 1. The operative Third Amended Complaint, however, asserts claims 28 against “Dr. Theresa Currier.” See ECF No. 66. For consistency, this Order refers to Defendant as “Dr. 1 No. 32. Allen filed his SAC on August 4, 2021. ECF No. 35. On January 27, 2022, the 2 Court issued an Order dismissing Allen’s Americans with Disabilities Act claims and 3 ordering service of the SAC and the summons on Dr. Currier. See generally ECF No. 41. 4 After seeking several extensions and Dr. Currier’s address, Plaintiff finally effected 5 service on Dr. Currier on August 31, 2022. See ECF No. 51. 6 After seeking and obtaining an extension, Dr. Currier filed a motion to dismiss on 7 October 21, 2022. See ECF Nos. 52–53, 55. On October 28, 2022, Plaintiff purported to 8 file a Third Amended Complaint (“TAC”). See ECF No. 56. As Plaintiff had already 9 amended his complaint as of right and had failed to obtain the Court’s permission to 10 amend, the Court struck the TAC. See ECF No. 57. Plaintiff thereafter filed a Motion 11 for Leave to File Third Amended Complaint. See ECF No. 60. On December 16, 2022, 12 following briefing, the Court granted the motion to amend and denied as moot Dr. 13 Currier’s pending motion to dismiss the SAC. See generally ECF No. 65. 14 Plaintiff filed the operative TAC on December 23, 2022. See generally ECF No. 15 66. On January 23, 2023, Defendant again moved to dismiss after obtaining an extension 16 of her time to respond. See ECF Nos. 67–69.2 On January 26, 2023, Plaintiff filed the 17 instant Motion, see Mot., as well as a Motion to Appoint Expert, see ECF No. 72. On 18 February 3, 2023, Plaintiff additionally filed a Motion for Limited Discovery. See ECF 19 No. 76.3 20 MOTION FOR RECONSIDERATION 21 To the extent Plaintiff seeks reconsideration of the Court’s prior denial of his 22 Motion to Appoint Counsel, the Motion is untimely. Plaintiff’s November 10, 2020 23 Motion to Appoint Counsel was denied by this Court on June 2, 2021. See ECF Nos. 8 24 (Motion) & 21 (Order). Pursuant to Civil Local Rule 7.1(i)(2), “[e]xcept as may be 25 26 2 Magistrate Judge Lupe Rodriguez, Jr., will issue a separate ruling on Defendant’s Motion to Dismiss following briefing on the matter. See ECF No. 69. 27

28 3 Magistrate Judge Lupe Rodriguez, Jr., will issue separate rulings on Plaintiff’s Motion to Appoint 1 allowed under Rules 59 and 60 of the Federal Rules of Civil Procedure, any motion or 2 application for reconsideration must be filed within twenty-eight (28) days after the entry 3 of the ruling, order or judgment sought to be reconsidered.” Accordingly, Plaintiff’s 4 deadline to move for reconsideration of the denial of his Motion to Appoint Counsel was 5 June 30, 2021. Plaintiff failed to file his motion, however, until one year and one-half 6 after that deadline had elapsed. Accordingly, the Court DENIES Plaintiff’s Motion as 7 untimely. See, e.g., Quechan Indian Tribe v. United States, Civil No. 02cv1096 JAH 8 (AJB), 2010 WL 3895055, at *3 (S.D. Cal. Sept. 29, 2010) (denying as untimely motion 9 seeking reconsideration of ruling issued nearly two years prior). 10 RENEWED MOTION TO APPOINT COUNSEL 11 In light of Plaintiff’s pro se status, however, the Court, in its discretion, construes 12 his Motion as a renewed motion to appoint counsel and decides the Motion on its merits. 13 See, e.g., Mora v. Clark, Case No. 19-cv-02468-AJB-MSB, 2020 WL 6268851, at *2 14 (S.D. Cal. Oct. 26, 2020) (construing untimely motions for reconsideration as objections 15 to report and recommendation); Andrews v. Knowles, No. 10cv2109-BEN (BLM), 2011 16 WL 2149619, at *1 (S.D. Cal. June 1, 2011) (considering untimely motion for 17 reconsideration on the merits given the plaintiff’s pro se prisoner status). 18 I. Legal Standard 19 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of 20 Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 21 2009). Rather, the appointment of counsel in a civil case “is a privilege and not a right.” 22 U. S. ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citing Wright v. 23 Rhay, 310 F.2d 687 (9th Cir. 1962)). And, while 28 U.S.C. § 1915(e)(1) grants the 24 district court limited discretion to “request” that an attorney represent an indigent civil 25 litigant in “exceptional circumstances,” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 26 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), “[a] finding 27 of exceptional circumstances requires an evaluation of both the ‘likelihood of success on 28 the merits and the ability of the plaintiff to articulate his claims pro se in light of the 1 complexity of the legal issues involved.’ Neither of these issues is dispositive and both 2 must be viewed together before reaching a decision.” Terrell, 935 F.2d at 1017 (quoting 3 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 4 II. Analysis 5 Here, Plaintiff—a prisoner at Centinela State Prison—indicates that he cannot 6 afford to pay an attorney to litigate this matter. Mot. at 3.4 He further argues that the 7 issues are complex because questions concerning the standard of care and the diagnosis 8 and treatment of Crohn’s disease require a medical expert with a specialization in 9 gastroenterology, and “[an] attorney will assist in obtaining a[n] expert to explain 10 medical issues,” which Plaintiff cannot do given his incarcerated status. Id. Plaintiff 11 argues that his case has merit because it has survived IFP screening and a motion to 12 dismiss,5 see id., and that exceptional circumstances warrant appointment of counsel 13 because the requests for admission he served on January 9, 2022,6 were lost in the mail, 14 thus establishing that his “access to the courts is being obstructed, impeded and stymied,” 15 id. at 3–4. Plaintiff notes that more recently, in late 2022, a supplemental brief for the 16 appeal of his criminal case was delivered three months after he sent it. Id. at 4. Plaintiff 17 cites to Third Circuit decisions recognizing the need for appointed counsel when the 18 plaintiff encounters obstacles in discovery. See id. (citations omitted). 19 Plaintiff has successfully navigated the Court system thus far, filing four 20 complaints in this matter, the most recent totaling one hundred and nineteen pages with 21 more than thirty exhibits. See generally ECF No. 66. Plaintiff successfully sought the 22 Court’s leave to file the operative TAC, thereby mooting Dr. Currier’s motion to dismiss. 23 24 4 In citing to the Motion, the Court refers to the blue numbers stamped in the upper righthand corner of each page by the Court’s case management/electronic case filing system. 25 5 The Court notes that Dr. Currier’s motion to dismiss the SAC was denied as moot when the Court 26 granted Plaintiff leave to file his TAC, and that the Court did not rule on the motion to dismiss on the merits. See generally ECF No. 65. 27

28 6 Although Plaintiff also specifies a date of January 9, 2019, that appears to be a typographical error, as 1 See ECF Nos. 60, 65. Plaintiff also successfully moved for Dr. Currier’s address to be 2 provided to the United States Marshals, who were initially unable to effect service. See 3 ECF Nos. 45–46. Plaintiff’s successes thus far indicate that he at least has a base 4 understanding of and ability to litigate this action. Nor are the legal issues raised by this 5 matter, asserting only two routine constitutional claims against a single defendant, 6 particularly complex. See, e.g., Estrada v. Macis, Case No. 1:15-cv-01292-AWI-SAB 7 (PC), 2017 WL 1207882, at *1 (E.D. Cal. Mar. 3, 2017) (“Plaintiff is proceeding on a 8 claim of deliberate indifference to a serious medical need and the legal issues present in 9 this action are not complex, and Plaintiff has thoroughly set forth his allegations in the 10 complaint.”). Further, the early stage of this litigation counsels against appointing 11 counsel at this time. “To the extent Plaintiff claims difficulties developing the factual 12 record and conducting discovery, those issues are not unique to him. If such difficulties 13 were sufficient to establish ‘exceptional circumstances,’ nearly every pro se prisoner 14 would be entitled to pro bono counsel.” Eckard v. Symons, No. C19-376-RSL-MLP, 15 2019 WL 2715664, at *1 (W.D. Wash. June 28, 2019) (citing Wilborn v. Escalderon, 789 16 F.2d 1328, 1331 (9th Cir. 1986)).7 17 While Plaintiff expresses concern about the delivery of his legal mail, the Court 18 notes that the instant Motion was provided to prison officials for mailing on January 23, 19 2023, and received by this Court three days later on January 26, 2023. See Mot. at 10. 20 Other filings received from Plaintiff in this matter also appear to have been timely 21 received by the Court. See generally Docket. Thus, the Court declines to infer that the 22 two instances of delayed or missing mail identified by Plaintiff are indicative of systemic 23 failings amounting to obstruction of his access to this Court. Indeed, difficulties with 24

25 7 Moreover, as this case has not yet proceeded past the pleading stage, discovery is premature. See Fed. 26 R. Civ. P. 26(d)(1) (“A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)[.]”); Duran v. City of Proterville, No. 1:12-cv-1239-LJO BAM, 2013 WL 27 12430031, at *1–2 (E.D. Cal. Jan. 17, 2013) (noting that discovery concerning the merits of the 28 plaintiff’s pleadings was premature where defendant’s motion to dismiss was still pending and Rule 1 mail processing and delivery are hardly unique to prisoners, with the U.S. Postal Service 2 itself acknowledging that it “ha[s] not met First-Class Mail service targets in eight years,” 3 with average First-Class Mail service performance for fiscal year 2020 “more than six 4 points below the target,” at 89.7 percent.” U.S. POSTAL SERV., DELIVERING FOR 5 AMERICA: OUR VISION AND TEN-YEAR PLAN TO ACHIEVE FINANCIAL SUSTAINABILITY 6 AND SERVICE EXCELLENCE 14 (2021), available at https://about.usps.com/what/strategic- 7 plans/delivering-for-america/assets/USPS_Delivering-For-America.pdf. Ultimately, 8 while the Court sympathizes with the difficulties Plaintiff faces as a pro se prisoner, 9 issues with mail access do not rise to the level of “exceptional circumstances” for 10 purposes of a motion to appoint counsel. See, e.g., Freeman v. Ducey, No. CV-20- 11 00287-TUC-RM, 2021 WL 3165405, at *1 (D. Ariz. June 28, 2021) (noting that “typical 12 difficulties experienced by pro se prisoner litigants,” including “limited access to legal 13 resources,” such as the plaintiff’s professed “limited access to mail,” “do not establish 14 exceptional circumstances”) (citations omitted); Donnan v. Cook, Civil No. 08cv2157 15 DMS (AJB), 2010 WL 3431823, at *2 (S.D. Cal. Aug. 30, 2010) (denying motion for 16 appointment of counsel for lack of showing of exceptional circumstances where, among 17 other things, plaintiff claimed he was “being denied the right to enjoy the U.S. Mail 18 Delivery System”). 19 Finally, while the Court has previously determined that Plaintiff’s claims were 20 adequately pleaded “to survive the ‘low threshold’ for proceeding past the sua sponte 21 screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b),” ECF No. 41 at 9–10 22 (citing Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); Ashcroft v. Iqbal, 556 23 U.S. 662, 678 (2009); Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), overruled on 24 other grounds by Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001)), “it is too early for the 25 Court to determine [Plaintiff]’s likelihood of success on the merits,” Clack v. San Diego 26 Sheriffs Dep’t, No. 08CV0624 IEG (RBB), 2009 WL 413030, at *2 (S.D. Cal. Feb. 18, 27 2009) (noting that court was unable to conclude that the plaintiff was likely to succeed 28 “[a]lthough Plaintiff’s allegations are sufficient to state a claim for relief”). At this early 1 stage in the proceedings, with discovery yet to even open, the Court simply does not have 2 |}enough facts and evidence to determine whether Plaintiff has a strong likelihood of 3 || success on the merits such that appointment of counsel is warranted. 4 In sum, Plaintiff has adequately litigated the case thus far, the case is still in its 5 ||infancy, and the Court is currently unable to determine how likely Plaintiff is to succeed 6 the merits of his claim. For these reasons, neither the interests of justice nor 7 || exceptional circumstances warrant appointment of counsel at this time. Accordingly, the 8 ||Court DENIES Plaintiff's Motion. Should circumstances change, Plaintiff may be 9 || permitted to file another motion for appointment of counsel. 10 CONCLUSION 11 In light of the foregoing, the Court DENIES Plaintiff's Motion (ECF No. 71). 12 IT IS SO ORDERED. 13 Dated: February 17, 2023 (ee 14 on. Janis L. Sammartino United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28