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. THIRD MOTION TO APPOINT COUNSEL 14 A. CORDERO; D. WHITE; WHITMAN,

15 Defendants. [Doc. No. 69] 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. Plaintiff alleges that he was targeted 20 by other inmates because he is a convicted sex offender, and that defendants failed to 21 protect him from assault by his cellmate in violation of his constitutional rights. See 22 generally id. Before the Court is plaintiff’s Motion for Appointment of Counsel (the 23 “Motion”). Doc. No. 69. This is plaintiff’s third request for counsel. See Doc. Nos. 19, 24 44. For the reasons set forth below, plaintiff’s Motion is DENIED. 25 The Court may, in the exercise of its discretion, appoint counsel if the party 26 requesting counsel can establish “exceptional circumstances” for doing so. Terrell v. 27 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). This Court denied plaintiff’s two prior 28 requests for the appointment of counsel, finding that plaintiff had not made the necessary 1 showing that such exceptional circumstances existed. See Doc. No. 27 at 4; Doc. No. 49 2 at 4. The Court instructed plaintiff that he could renew his motion if his circumstances 3 changed such that he could make the necessary showing that he is both likely to succeed 4 on the merits of his claims, and unable to competently articulate those claims. See id. 5 However, the Court cautioned plaintiff that a motion that merely repeated arguments 6 already considered and rejected by the Court would not be granted. Id. 7 In support of his Motion, plaintiff states the following: (1) he needs counsel because 8 he does not know how to prepare for trial or file an appeal; (2) defense counsel has “taken 9 advantage” of his pro se status by “denying [him] effective discovery” and he needs 10 counsel to “prove material fact[s]”; (3) it is “only fair” that if defendants have counsel paid 11 for by tax dollars he should have the same; (4) he needs counsel to help him move for a 12 temporary restraining order; and (5) he has autism and is unable to “articulat[e] [his] case 13 in any coherent manner.” See Doc. No. 69 at 1-2. 14 None of the foregoing demonstrates any change in circumstances or new facts that 15 would justify a departure from the Court’s prior findings. See CivLR 7.1.i.1 (requiring 16 party requesting reconsideration of a prior order to explain “what new or different facts 17 and circumstances are claimed to exist which did not exist, or were not shown” since the 18 prior order was issued). The Court has already found, and finds again, that the foregoing 19 factors do not individually or collectively establish “exceptional circumstances” 20 warranting the appointment of counsel. 21 To reiterate, for the Court to appoint counsel, it must be persuaded that plaintiff that 22 is both likely to succeed on the merits of his claims, and that he is unable to effectively 23 articulate those claims. Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014). As before, 24 although plaintiff speculates that he would be successful in his efforts to secure an 25 injunction if he had the assistance of counsel, he has not identified any facts to support a 26 finding that he is likely to prevail on the merits of his claim. The Court finds this factor 27 weighs against the appointment of counsel. 28 /// 1 Regarding his ability to competently articulate his claims, the Court has previously 2 considered plaintiff’s argument that he lacks the ability to pursue his claims because he is 3 a layman unfamiliar with civil (or appellate) procedure. Although it may be difficult for 4 plaintiff to investigate his case so that he can “prove material fact[s]” (Doc. No. 69 at 2), 5 his need to do so is neither unique nor exceptional. The Court is not persuaded by 6 plaintiff’s accusations that defense counsel “[took] advantage” of him, forcing him to 7 “forfeit any further attempt at discovery.” Doc. No. 69 at 2. Plaintiff has been repeatedly 8 advised that despite his pro se status, he is expected to comply with the Federal Rules of 9 Civil Procedure and this Court’s rules, including the rules governing discovery. See, e.g., 10 Doc. No. 53 at 4; Doc. No. 54 at 2-3; Doc. No. 58 at 4-5. The parties were also explicitly 11 instructed that any failure to follow discovery rules and procedures “[would] result in a 12 waiver of a party’s discovery issue.” Doc. No. 39 at 2. Despite the Court’s guidance and 13 instructions, plaintiff chose to “forfeit” the procedures available to him to obtain discovery 14 and to compel further responses or documents if defendants’ responses were lacking. See 15 Doc. No. 69 at 2. The Court will not premise the appointment of counsel on plaintiff’s 16 deliberate abandonment of the discovery process. 17 Plaintiff further alleges that his “developmental disability . . . prevents [him] from 18 articulating [his] case . . ..” See id. The docket demonstrates otherwise. To date, plaintiff 19 has filed, inter alia, a Complaint that survived initial screening, a Motion for a Temporary 20 Restraining Order, two Motions for Summary Judgment, an Objection to the undersigned’s 21 Report and Recommendation regarding the first summary-judgment motion, and three 22 motions for appointment of counsel. See Doc. Nos. 1, 9, 19, 35, 44, 57, 68 and 69. Plaintiff 23 also ably participated in a Mandatory Settlement Conference before the undersigned. See 24 Doc. No. 66. 25 For the above reasons, the Court finds that plaintiff can competently articulate his 26 claim, and that this factor also weighs against the appointment of counsel. 27 Finally, the Court turns to plaintiff’s contention that since “defendants have counsel 28 at the taxpayers expense . . . it is only fair that [he] should have counsel as well.” Doc. No. 1 || 69 at 2. Plaintiff appears to argue that he is entitled to counsel by virtue of his affirmative 2 || choice to initiate this litigation. That is not the law. See Hedges v. Resolution Trust Corp., 3 F.3d 1360, 1363 (9th Cir. 1994) (“There is no absolute right to counsel in civil 4 || proceedings.’’). Instead, the Ninth Circuit has established the “exceptional circumstances” 5 to assist courts in determining whether, in fact, fairness requires the appointment of 6 |}counsel. In this case, and for the reasons stated herein, the Court finds that it does not. 7 || Plaintiff's Motion is accordingly DENIED. 8 ORDER 9 For the foregoing reasons, the Court finds plaintiff has not made the necessary 10 || showing that he is both likely to succeed on the merits of his claims, and that he is unable 11 ||to competently present those claims to the Court. Plaintiff's Motion for the Appointment 12 Counsel [Doc. No. 69] is DENIED. 13 |} IS SO ORDERED. 14 || Dated: March 23, 2022 A y /; ) 15 WU LA SSS 16 Hori. Karen S. Crawford United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28