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.: 20-cv-1968-JLS-KSC

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. SECOND MOTION TO APPOINT COUNSEL 14 A. CORDERO; D. WHITE; WHITMAN,

15 Defendants. [Doc. No. 44] 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. Plaintiff alleges that he was targeted 19 by other inmates because he is a convicted sex offender, and that defendants failed to 20 protect him from assault by his cellmate in violation of his constitutional rights. See 21 generally Doc. No. 1. Before the Court is plaintiff’s Motion for Appointment of Counsel 22 (“Motion” or “Mot.”). Doc. No. 44. This is plaintiff’s second request for counsel. See 23 Doc. Nos. 19, 27. For the reasons set forth below, plaintiff’s Motion is DENIED. 24 I. Plaintiff’s Rationale for Appointment of Counsel 25 In his Motion, plaintiff states he needs a “public defender” to help him conduct 26 effective discovery, comply with the schedule for completing discovery, and to help him 27 obtain expert testimony. Mot. at 1. With regards to discovery, plaintiff states that he needs 28 discovery into the records of his old “celleys” (i.e., cellmates) to determine if they have a 1 history of harming sex offenders, but that “the prison” will not give him access to these 2 “confidential ‘C’ file[s].” Id. Plaintiff reasons that if he had counsel, he would be able to 3 get these files, which would help him prove he should not have been housed with these 4 “celleys.” Id. Plaintiff also states he needs appointed counsel to properly acquire expert 5 testimony. Id. He states: “I simply do not have the resources available to correspond and 6 obtain the necessary expert testimony and or deposition, therefore counsel is needed.” Id. 7 II. Legal Standard 8 In civil cases, a plaintiff does not have the right to counsel and must, as plaintiff has 9 here, file a motion with the court to demonstrate that counsel is needed. See Cano v. Taylor, 10 739 F.3d 1214, 1218 (9th Cir. 2014). The Court may, in its discretion, request pro bono 11 counsel for a pro se litigant where the need for counsel is sufficiently established. Id. In 12 the Ninth Circuit, that analysis requires the Court to consider whether a plaintiff has 13 demonstrated “exceptional circumstances” that warrant the assistance of counsel. Id. 14 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 15 likelihood of success on the merits as well as the ability of the petitioner to articulate his 16 claims pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 17 560 F.3d 965, 970 (9th Cir. 2009) (citation omitted). Neither of these considerations is 18 dispositive and must be looked at together. Id. 19 III. Discussion 20 The Court finds that plaintiff has not met his burden to demonstrate exceptional 21 circumstances that warrant the appointment of counsel at the taxpayers’ expense. Plaintiff 22 has not shown that his claim is likely to succeed on its merits, and the record before the 23 Court demonstrates that plaintiff is able to effectively articulate his claims. 24 As before, plaintiff’s Motion fails to demonstrate the likelihood that he will succeed 25 on his claims. See Doc. No. 27 at 3. Plaintiff speculates that his motion for a preliminary 26 injunction would have been successful if he had the assistance of counsel, but he does not 27 provide support for this conclusion, and does not otherwise identify facts to support a 28 finding that he may succeed on the merits of his claims. See Mot. at 2. Considering the 1 early stage of the case, and without any further showing by plaintiff, the Court cannot find 2 that this case is likely to succeed on its merits. See Stevenson v. Beard, 2020 U.S. Dist. 3 LEXIS 230259, at **6-7 (S.D. Cal. December 7, 2020) (stating that it was too early in the 4 litigation process for the Court to opine on the likelihood of the claim’s success). While 5 some of plaintiff’s claims have survived up to this point, this is not evidence that he is 6 likely to prevail. See Ortega v. CSP-SAC Prison Officials, 2010 U.S. Dist. LEXIS 77987, 7 at **4-5 (D. Haw. June 7, 2010) (holding that plaintiff had not demonstrated a likelihood 8 of success merely because the court found his claims “potentially viable”). For these 9 reasons, the Court finds that this factor weighs against the appointment of counsel. 10 The Court must also look at plaintiff’s ability to articulate his claim in light of the 11 legal complexities of the case. See Cano, 739 F.3d at 1218. As before, plaintiff argues that 12 discovery would be easier if he had an attorney. Mot. at 1; see also Doc. No. 19 at 1-2. 13 However, this representation does not demonstrate an exceptional circumstance, but rather 14 one that is experienced by most pro se prisoner litigants. See Wood v. Housewright, 900 15 F.2d 1332, 1335–1336 (9th Cir. 1990) (“The instances that [plaintiff] claims indicate the 16 presence of these factors are difficulties which any litigant would have in proceeding pro 17 se; they do not indicate exceptional factors.”). Plaintiff’s lack of legal training and 18 experience to manage the discovery process – specifically, taking depositions and 19 procuring expert witness testimony – is also not unique to plaintiff’s case. In fact, these 20 are challenges that nearly all incarcerated litigants face, and are thus far from exceptional. 21 The Court in Sepulveda v. Galindo explained that even where a plaintiff is not 22 “formally trained in law, his allegations, as liberally construed, [may] show he nevertheless 23 is fully capable of legibly articulating the facts and circumstances relevant to his claims, 24 which are not legally ‘complex.’” Sepulveda v. Galindo, 2021 U.S. Dist. LEXIS 39003, at 25 *25 (S.D. Cal. March 2, 2021) (quoting Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 26 1103 (9th Cir. 2004)) (internal citation omitted). The same reasoning applies here. The 27 docket reflects that plaintiff has consistently demonstrated his ability to convey the facts 28 and circumstances pertinent to his claim. Among other things, plaintiff filed a Complaint 1 survived initial screening, a Motion to Proceed In Forma Pauperis, a Motion for 2 Reconsideration, a Motion for a Temporary Restraining Order, a Motion for Summary 3 || Judgment, and two motions for appointment of counsel. See Doc. Nos. 1, 2, 7, 9, 19, 35 4 ||and 44. The Court therefore finds that he can competently articulate his claim, and that 5 factor also weighs against the appointment of counsel. 6 || Conclusion 7 For the above reasons, the Court finds plaintiff has not carried his burden of 8 ||demonstrating “exceptional circumstances” requiring the appointment of counsel. 9 || Plaintiff's Motion is accordingly DENIED. Plaintiff may file a renewed motion if he can 10 ||}make the necessary showing of exceptional circumstances. The Court advises plaintiff, 11 || however, that a renewed motion that merely repeats arguments already considered and 12 rejected by the Court will not be granted. 13 || IT IS SO ORDERED. Uf; ™) 14 || Dated: August 9, 2021 WV GP SEE 15 Hori. Karen S. Crawford United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28