Delena v. Lara

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID I. DELENA, JR., Case No.: 3:23-cv-00345-JAH-VET CDCR #AL8117 12 ORDER DENYING Plaintiff, 13 v. (1) MOTION FOR EXTENSION 14 OF TIME TO FILE GEORGE LARA, K. MACK, 15 OPPOSITION REPLY AND Defendants. APPOINTMENT OF 16 COUNSEL (DOC. NO. 16) AND 17 (2) MOTION FOR 18 APPOINTMENT OF 19 COUNSEL (DOC. NO. 19)

20 [Doc. Nos. 16 and 19] 21 22

23 I. INTRODUCTION 24 On February 17, 2023, Plaintiff David I. Delena, Jr., a state inmate proceeding pro 25 se and in forma pauperis, filed a civil rights action pursuant to 42 U.S.C. § 1983 against 26 Defendants George Lara and K. Mack. Doc. No. 1. Before the Court are Plaintiff’s motions 27 for (i) an extension of time to reply to Defendants’ Answer, including a request for 28 1 appointment of counsel, filed on February 1, 2024, and (ii) appointment of counsel, filed 2 on February 26, 2024. Doc. Nos. 16, 19. 3 For the reasons set forth below, the Court DENIES AS MOOT Plaintiff’s motion 4 for an extension and DENIES WITHOUT PREJUDICE Plaintiff’s requests for 5 appointment of counsel. 6 II. REQUEST FOR EXTENSION OF TIME TO FILE REPLY 7 On August 7, 2023, Plaintiff filed an Amended Complaint with leave of Court. Doc. 8 Nos. 5, 7. On January 8, 2024, Defendants filed an Answer to the Amended Complaint. 9 Doc. No. 14. On February 1, 2024, Plaintiff requested an extension of time to reply to 10 Defendants’ Answer, including a request for the “paperwork” to file a reply and 11 appointment of counsel. Doc. No. 16. On February 26, 2024, Plaintiff filed an “Opposition 12 to Defendant’s Answer to Plaintiff Amended Complaint” (the “Reply”). Doc. No. 20. 13 Federal Rule of Civil Procedure 7(a) permits only specified pleadings, and “a reply 14 to an answer” is allowed only “if the court orders one.” Fed. R. Civ. P. 7(a)(7); Weddle v. 15 Bayer AG Corp., No. 11-cv-00817, 2012 U.S. Dist. LEXIS 40978, at *15 (S.D. Cal. Mar. 16 26, 2012); see also Ramos Oil Recyclers, Inc. v. AWIM, Inc., No. 07-cv-00448, 2007 U.S. 17 Dist. LEXIS 62608, at *10 (E.D. Cal. Aug. 15, 2007) (“no responsive pleading is permitted 18 to an affirmative defense”). Here, the Court did not order a reply to Defendants’ Answer, 19 nor did Plaintiff seek such an order. Accordingly, no deadline or court order exists 20 authorizing Plaintiff to file a reply to Defendants’ answer. 21 Nevertheless, Plaintiff filed a Reply to Defendants’ Answer. Doc. No. 20. Although 22 not authorized, Plaintiff’s Reply will remain on the docket. Plaintiff is advised that any 23 further non-compliant documents may be stricken from the record. Furthermore, given 24 Plaintiff’s filing of the Reply, Plaintiff’s motion for an extension of time to file a reply is 25 DENIED AS MOOT. 26 III. REQUESTS FOR APPOINTMENT OF COUNSEL 27 Plaintiff previously filed a Motion to Appoint Counsel on August 30, 2023, which 28 the Court denied without prejudice on October 23, 2023. Doc. Nos. 8 and 10. Thereafter, 1 Defendants filed an Answer and the Court set an Early Neutral Evaluation Conference 2 (“ENE”) and Case Management Conference (“CMC”) for March 22, 2024 (the 3 “ENE/CMC Notice and Order”). See Doc. Nos. 14, 15. Based on these events, Plaintiff 4 again seeks appointment of counsel. Doc. Nos. 16, 19. 5 A. Legal Standard 6 There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of Social 7 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). And 8 while 28 U.S.C. § 1915(e)(1) gives the Court discretion to “request” that an attorney 9 represent an indigent civil litigant, this discretion may be exercised only in “exceptional 10 circumstances.” Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); 11 see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional 12 circumstances requires the Court to “consider whether there is a ‘likelihood of success on 13 the merits’ and whether ‘the prisoner is unable to articulate his claims in light of the 14 complexity of the legal issues involved.’” Harrington v. Scribner, 785 F.3d 1299, 1309 15 (9th Cir. 2015) (quoting Palmer, 560 F.3d at 970). “[Neither] of these factors is dispositive; 16 rather they must be considered cumulatively.” Cano v. Taylor, 739 F.3d 1214, 1218 (9th 17 Cir. 2014) (citing Palmer, 560 F.3d at 970). Moreover, while a plaintiff “may face 18 challenges litigating his case pro se, it is within a district court’s discretion whether to 19 appoint counsel in a § 1983 action and whether ‘exceptional circumstances’ exist to do so.” 20 Amezquita v. Hough, No. 21-56059, 2023 U.S. App. LEXIS 15490, at *5 (9th Cir. June 21, 21 2023). 22 B. Discussion 23 1. Plaintiff’s Likelihood of Success on the Merits 24 Plaintiff sufficiently pleaded a plausible Eighth Amendment claim based on a pre- 25 answer screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Doc. No. 10. 26 However, the threshold for a complaint to survive screening is “low,” see Wilhelm v. 27 Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012), and therefore does not determine whether 28 Plaintiff is likely to succeed on the merits of his claim. 1 Here, Plaintiff offers no argument that he is likely to succeed on the merits. See 2 generally Doc. Nos. 16, 19. Further, the Court finds that this case is still at a preliminary 3 stage such that it is not clear Plaintiff is likely to succeed. And the filing of an answer and 4 the setting of an ENE/CMC does not require a different conclusion. Both events occur at 5 the outset of a case, before the parties have engaged in discovery and the record is fully 6 developed. See, e.g., CivLR 16.1(c) (requiring that parties appear for an ENE within 45 7 days of the filing of an answer); see also Fernandez v. Duarte, No. 22-CV-446-BAS-WVG, 8 2023 U.S. Dist. LEXIS 174631, at *3–4 (S.D. Cal. Sept. 28, 2023) (concluding that case 9 was still in preliminary stages of litigation although court had set ENE/CMC). This factor 10 does not support the appointment of counsel. 11 2. Plaintiff’s Ability to Articulate His Claims 12 Next, Plaintiff has repeatedly demonstrated the ability to articulate his claims 13 considering the complexity of the legal issues presented. For instance, in response to a 14 court order, Plaintiff drafted and timely filed an amended complaint that survived pre- 15 answer screening. Doc. Nos. 5, 7. He subsequently filed a Reply to Defendants’ Answer, 16 rebutting each of Defendants’ affirmative defenses with legal and factual arguments. Doc. 17 No. 20; see also Terrell, 935 F.2d at 1017 (plaintiff “demonstrated sufficient writing ability 18 and legal knowledge to articulate his claim”). 19 Moreover, while Plaintiff suggests that he is required to have counsel present at the 20 ENE/CMC, see Doc. No. 19 at 3, the opposite is true. Plaintiff may represent himself at 21 the ENE/CMC, and the Court’s ENE/CMC Notice and Order expressly contemplates such 22 a situation. See Doc. No. 15 at 2, n.1 (“references to ‘counsel’ or ‘attorney(s)’ include any 23 party appearing pro se”). Additionally, while the parties must submit ENE statements, as 24 stated by Plaintiff, it is evident that he understands the need to prepare such a statement 25 and, in fact, states that he is “working on [his] arguments against the defense arguments.” 26 Doc. No. 19 at 3. Furthermore, the Court gave the parties instructions concerning the 27 required contents of the ENE Statement, and thus Plaintiff knows the information to 28 include in his ENE Statement. See Doc. No. 15 at 5–6. In short, Plaintiff has shown that he has sufficient command of the facts of his case 2 the applicable law to articulate his claims given the complexity of the issues involved. 3 || The Court is not persuaded that the filing of an answer, the setting of an ENE/CMC, or the 4 || preparation of an ENE statement are factors that create exceptional circumstances. Wood 5 ||\v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990) (explaining that the ordinary 6 || difficulties facing a pro se litigant do not constitute “exceptional factors’’) 7 Accordingly, the Court finds no “exceptional circumstances” exist at this stage of 8 || the proceedings that warrant the appointment of counsel. See Cano, 739 F.3d at 1218-1219. 9 CONCLUSION 10 Based on the foregoing, the Court DENIES AS MOOT Plaintiff's request for an 11 extension of time to reply to Defendants’ Answer. See Doc. No. 16. Further, the Court 12 || DENIES WITHOUT PREJUDICE Plaintiff's requests for appointment of counsel. Doc. 13 || Nos. 16, 19. Plaintiff may renew this motion later in the proceedings only if exceptional 14 || circumstances—circumstances not set forth in Plaintiff’s first three motions—warrant the 15 || appointment of counsel. 16 IT IS SO ORDERED. 17 Dated: March 15, 2024 18 [wre 19 Honorable Valerie E. Torres 20 United States Magistrate Judge 21 22 23 24 25 26 27 28