1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANGEL ALVAREZ, Case No. 24-cv-07284-NW
8 Plaintiff, ORDER ADDRESSING 9 v. MISCELLANEOUS MOTIONS, SETTING FURTHER BRIEFING 10 DOUGLAS COLFER LONG, et al., SCHEDULE 11 Defendants. Re: ECF Nos. 52, 55
12 13 On November 14, 2025, the Court partially granted Defendants’ motion to dismiss and 14 referred the parties to the Court’s Pro Se Prisoner Mediation Program. The parties did not come to 15 an agreement. See ECF Nos. 47, 57 (minute entry noting that matter did not settle). Plaintiff 16 Angel Alvarez also filed a motion requesting the appointment of counsel and a “motion for order 17 requiring defendants to file answer and opposition to defendants’ motion to waive reply and 18 demand for jury trial.” ECF Nos. 52, 55. The Court addresses each motion and sets a further 19 briefing schedule below. 20 I. MOTION FOR APPOINTMENT OF COUNSEL 21 Alvarez filed a motion requesting the appointment of counsel. ECF No. 52. It is Alvarez’s 22 fourth such motion. See ECF Nos. 3, 16, 22. In his latest motion, Alvarez argues that his case 23 presents exceptional circumstances because he cannot afford counsel, is likely to succeed on the 24 merits, and his ability to litigate his case will “decline” as the proceedings move to jury selection 25 and trial. ECF No. 52 at 6. 26 There is no constitutional right to counsel in a civil case unless an indigent litigant may 27 lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S. 1 counsel in 42 U.S.C. § 1983 action), withdrawn in part on other grounds on reh’g en banc, 154 2 F.3d 952 (9th Cir. 1998) (en banc). A court “may request an attorney to represent any person 3 unable to afford counsel” under 28 U.S.C. § 1915(e)(1). The decision whether to appoint one rests 4 within “the sound discretion of the trial court” and is generally granted in exceptional 5 circumstances. Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). To determine whether 6 appointment of counsel is warranted, the Court considers whether the claims are likely to be 7 meritorious and the plaintiff’s ability to articulate his claims “in light of the complexity of the 8 legal issues involved.” Agyeman v. Corrs. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) 9 (citation modified). 10 While Alvarez has stated cognizable claims, the likelihood of Alvarez’s success on the 11 merits cannot be ascertained at this stage. See Guillory v. Contra Costa Cnty. Sheriff, No. C-05- 12 4395 CW, 2007 WL 2237625, *1 (N.D. Cal. Aug. 1, 2007) (denying motion for appointment of 13 counsel prior to summary judgment where case was not particularly complex). Alvarez similarly 14 fails to show exceptional circumstances. See Ramirez v. Gutierrez, No. 20-cv-01109-MMA, 2022 15 WL 959647, *2 (S.D. Cal. Mar. 30, 2022) (noting that circumstances such as deficient education 16 or knowledge of the law alone do not establish exceptional circumstances warranting the 17 appointment of counsel); Jones v. Kuppinger, No. 13–cv–0451 WBS, 2015 WL 5522290, *3-4 18 (E.D. Cal. Sept. 17, 2015) (same). Moreover, as evidenced by his complaint and motions, Alvarez 19 has shown he is capable of clearly presenting his claims, facts, and arguments. See LaMere v. 20 Risley, 827 F.2d 622, 626 (9th Cir. 1987) (upholding denial of counsel in habeas proceeding where 21 pro se prisoner’s court pleadings “illustrate . . . that he had a good understanding of the issues and 22 the ability to present forcefully and coherently his contentions.”). 23 Accordingly, the Court DENIES Alvarez’s fourth request for the appointment of counsel 24 without prejudice to renewal after the Court rules on any further dispositive motion. See ECF 25 No. 52. 26 II. MOTION FOR ANSWER 27 Alvarez also filed a motion requesting that this Court order Defendants to file an answer, 1 should order Defendants to file an answer because Alvarez has a “reasonable opportunity to 2 prevail on the merits.” ECF No. 55 at 5 (citing 42 U.S.C. §1997(g)(1)). He also argues that 3 Defendants may not demand a jury trial because they have not filed an answer or concluded 4 discovery. Id. at 6–7. 5 Defendants may waive the right to reply to a prisoner’s 42 U.S.C. § 1983 lawsuit. See 42 6 U.S.C. § 1997e(g)(1). A defendant who waives an answer does not admit the plaintiff’s 7 allegations, and a district court “may require” an answer “if it finds that the plaintiff has a 8 reasonable opportunity to prevail on the merits.” 42 U.S.C. § 1997e(g)(1)–(2). As noted above, at 9 this stage, Alvarez has shown only that his claims are cognizable, but not a reasonable likelihood 10 of success on the merits. The Court will, however, order Defendants to file an answer should the 11 matter proceed to trial. 12 Moreover, the Court notes that Defendants did not make a motion for a jury trial but rather 13 asserted their rights under Federal Rule of Civil Procedure 38(b). See generally ECF No. 50; see 14 also Fed. R. Civ. P. 38(c) (parties have a statutory right to demand a jury trial for specific issues or 15 “all the issues so triable”). The triable issues of fact in this matter will be determined by the Court 16 through summary judgment. To the extent that Alvarez opposes Defendants’ demand for a jury 17 trial because discovery is ongoing, the Court notes that no trial has been scheduled at this time, 18 and that Alvarez may file a motion to compel if Defendants fail to comply with their discovery 19 obligations. See Fed. R. Civ. P. 37(a). Accordingly, as the motion for an answer is premature, 20 Alvarez’s motion is DENIED WITHOUT PREJUDICE. 21 III. CONCLUSION 22 The Court orders as follows: 23 1. The motion for the appointment of counsel (ECF No. 52) is DENIED WITHOUT 24 PREJUDICE. 25 2. The motion requesting that this Court order Defendants to file an answer (ECF 26 No. 55) is DENIED WITHOUT PREJUDICE. 27 3. In order to expedite the resolution of this case, the Court orders the following 1 a. No later than 60 days from the date of service of this order, Defendants will 2 file a motion for summary judgment. The motion will be supported by 3 adequate factual documentation, shall conform in all respects to Federal 4 Rule of Civil Procedure 56, and will include as exhibits all records and 5 incident reports stemming from the events at issue. If Defendants are of the 6 opinion that this case cannot be resolved by summary judgment or other 7 dispositive motion, they will inform the Court prior to the date the 8 dispositive motion is due. All papers filed with the Court will be promptly 9 served on Alvarez. 10 b. At the time the motion for summary judgment is served, Defendants will 11 also serve, on a separate paper, the appropriate notice or notices required by 12 Rand v.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANGEL ALVAREZ, Case No. 24-cv-07284-NW
8 Plaintiff, ORDER ADDRESSING 9 v. MISCELLANEOUS MOTIONS, SETTING FURTHER BRIEFING 10 DOUGLAS COLFER LONG, et al., SCHEDULE 11 Defendants. Re: ECF Nos. 52, 55
12 13 On November 14, 2025, the Court partially granted Defendants’ motion to dismiss and 14 referred the parties to the Court’s Pro Se Prisoner Mediation Program. The parties did not come to 15 an agreement. See ECF Nos. 47, 57 (minute entry noting that matter did not settle). Plaintiff 16 Angel Alvarez also filed a motion requesting the appointment of counsel and a “motion for order 17 requiring defendants to file answer and opposition to defendants’ motion to waive reply and 18 demand for jury trial.” ECF Nos. 52, 55. The Court addresses each motion and sets a further 19 briefing schedule below. 20 I. MOTION FOR APPOINTMENT OF COUNSEL 21 Alvarez filed a motion requesting the appointment of counsel. ECF No. 52. It is Alvarez’s 22 fourth such motion. See ECF Nos. 3, 16, 22. In his latest motion, Alvarez argues that his case 23 presents exceptional circumstances because he cannot afford counsel, is likely to succeed on the 24 merits, and his ability to litigate his case will “decline” as the proceedings move to jury selection 25 and trial. ECF No. 52 at 6. 26 There is no constitutional right to counsel in a civil case unless an indigent litigant may 27 lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S. 1 counsel in 42 U.S.C. § 1983 action), withdrawn in part on other grounds on reh’g en banc, 154 2 F.3d 952 (9th Cir. 1998) (en banc). A court “may request an attorney to represent any person 3 unable to afford counsel” under 28 U.S.C. § 1915(e)(1). The decision whether to appoint one rests 4 within “the sound discretion of the trial court” and is generally granted in exceptional 5 circumstances. Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). To determine whether 6 appointment of counsel is warranted, the Court considers whether the claims are likely to be 7 meritorious and the plaintiff’s ability to articulate his claims “in light of the complexity of the 8 legal issues involved.” Agyeman v. Corrs. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) 9 (citation modified). 10 While Alvarez has stated cognizable claims, the likelihood of Alvarez’s success on the 11 merits cannot be ascertained at this stage. See Guillory v. Contra Costa Cnty. Sheriff, No. C-05- 12 4395 CW, 2007 WL 2237625, *1 (N.D. Cal. Aug. 1, 2007) (denying motion for appointment of 13 counsel prior to summary judgment where case was not particularly complex). Alvarez similarly 14 fails to show exceptional circumstances. See Ramirez v. Gutierrez, No. 20-cv-01109-MMA, 2022 15 WL 959647, *2 (S.D. Cal. Mar. 30, 2022) (noting that circumstances such as deficient education 16 or knowledge of the law alone do not establish exceptional circumstances warranting the 17 appointment of counsel); Jones v. Kuppinger, No. 13–cv–0451 WBS, 2015 WL 5522290, *3-4 18 (E.D. Cal. Sept. 17, 2015) (same). Moreover, as evidenced by his complaint and motions, Alvarez 19 has shown he is capable of clearly presenting his claims, facts, and arguments. See LaMere v. 20 Risley, 827 F.2d 622, 626 (9th Cir. 1987) (upholding denial of counsel in habeas proceeding where 21 pro se prisoner’s court pleadings “illustrate . . . that he had a good understanding of the issues and 22 the ability to present forcefully and coherently his contentions.”). 23 Accordingly, the Court DENIES Alvarez’s fourth request for the appointment of counsel 24 without prejudice to renewal after the Court rules on any further dispositive motion. See ECF 25 No. 52. 26 II. MOTION FOR ANSWER 27 Alvarez also filed a motion requesting that this Court order Defendants to file an answer, 1 should order Defendants to file an answer because Alvarez has a “reasonable opportunity to 2 prevail on the merits.” ECF No. 55 at 5 (citing 42 U.S.C. §1997(g)(1)). He also argues that 3 Defendants may not demand a jury trial because they have not filed an answer or concluded 4 discovery. Id. at 6–7. 5 Defendants may waive the right to reply to a prisoner’s 42 U.S.C. § 1983 lawsuit. See 42 6 U.S.C. § 1997e(g)(1). A defendant who waives an answer does not admit the plaintiff’s 7 allegations, and a district court “may require” an answer “if it finds that the plaintiff has a 8 reasonable opportunity to prevail on the merits.” 42 U.S.C. § 1997e(g)(1)–(2). As noted above, at 9 this stage, Alvarez has shown only that his claims are cognizable, but not a reasonable likelihood 10 of success on the merits. The Court will, however, order Defendants to file an answer should the 11 matter proceed to trial. 12 Moreover, the Court notes that Defendants did not make a motion for a jury trial but rather 13 asserted their rights under Federal Rule of Civil Procedure 38(b). See generally ECF No. 50; see 14 also Fed. R. Civ. P. 38(c) (parties have a statutory right to demand a jury trial for specific issues or 15 “all the issues so triable”). The triable issues of fact in this matter will be determined by the Court 16 through summary judgment. To the extent that Alvarez opposes Defendants’ demand for a jury 17 trial because discovery is ongoing, the Court notes that no trial has been scheduled at this time, 18 and that Alvarez may file a motion to compel if Defendants fail to comply with their discovery 19 obligations. See Fed. R. Civ. P. 37(a). Accordingly, as the motion for an answer is premature, 20 Alvarez’s motion is DENIED WITHOUT PREJUDICE. 21 III. CONCLUSION 22 The Court orders as follows: 23 1. The motion for the appointment of counsel (ECF No. 52) is DENIED WITHOUT 24 PREJUDICE. 25 2. The motion requesting that this Court order Defendants to file an answer (ECF 26 No. 55) is DENIED WITHOUT PREJUDICE. 27 3. In order to expedite the resolution of this case, the Court orders the following 1 a. No later than 60 days from the date of service of this order, Defendants will 2 file a motion for summary judgment. The motion will be supported by 3 adequate factual documentation, shall conform in all respects to Federal 4 Rule of Civil Procedure 56, and will include as exhibits all records and 5 incident reports stemming from the events at issue. If Defendants are of the 6 opinion that this case cannot be resolved by summary judgment or other 7 dispositive motion, they will inform the Court prior to the date the 8 dispositive motion is due. All papers filed with the Court will be promptly 9 served on Alvarez. 10 b. At the time the motion for summary judgment is served, Defendants will 11 also serve, on a separate paper, the appropriate notice or notices required by 12 Rand v. Rowland, 154 F.3d 952, 953-54 (9th Cir. 1998) (en banc), and 13 Wyatt v. Terhune, 315 F.3d 1108, 1120 n.4 (9th Cir. 2003). See Woods v. 14 Carey, 684 F.3d 934, 940-41 (9th Cir. 2012) (Rand and Wyatt notices must 15 be given at the time motion for summary judgment or motion to dismiss for 16 non-exhaustion is filed, not earlier); Rand, 154 F.3d at 960 (separate paper 17 requirement). 18 c. Alvarez’s opposition to the motion for summary judgment, if any, will be 19 filed with the Court and served upon Defendants no later than 28 days from 20 the date the motion was served upon him. Alvarez must read the attached 21 page headed “NOTICE -- WARNING,” which is provided to him pursuant 22 to Rand, 154 F.3d at 953-54, and Klingele v. Eikenberry, 849 F.2d 409, 23 411-12 (9th Cir. 1988). 24 d. If Defendants wish to file a reply brief, they shall do so no later than 25 14 days after the opposition is served upon him. 26 e. The motion shall be deemed submitted as of the date the reply brief is due. 27 Absent a further order of the Court, no hearing will be held on the motion. ] Defendants’ counsel once counsel has been designated, by mailing a true copy of 2 the document to Defendants or Defendants’ counsel. 3 5. Itis Alvarez’s responsibility to prosecute this case. Alvarez must keep the Court 4 informed of any change of address by filing a separate paper with the Clerk headed 5 “Notice of Change of Address.” He also must comply with the Court’s orders in a 6 timely fashion. Failure to do so may result in the dismissal of this action for failure 7 to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 8 IT IS SO ORDERED. 9 || Dated: April 17, 2026 10 hid Noél Wise United States District Judge a 12
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1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in the defendant’s declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17 NOTICE -- WARNING (EXHAUSTION) 18 If defendants file a motion for summary judgment for failure to exhaust, they are seeking 19 to have your case dismissed. If the motion is granted it will end your case. 20 You have the right to present any evidence you may have which tends to show that you did 21 exhaust your administrative remedies. Such evidence may be in the form of declarations 22 (statements signed under penalty of perjury) or authenticated documents, that is, documents 23 accompanied by a declaration showing where they came from and why they are authentic, or other 24 sworn papers, such as answers to interrogatories or depositions. 25 If defendants file a motion for summary judgment for failure to exhaust and it is granted, 26 your case will be dismissed and there will be no trial. 27