De'marian Clemons v. Tanya Hill

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 29, 2018
• Docket: 17-15267
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DE’MARIAN CLEMONS, No. 17-15267

Plaintiff-Appellant, D.C. No. 2:13-cv-00093-RFB-NJK

v. MEMORANDUM* TANYA HILL, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware, II, District Judge, Presiding

Argued and Submitted November 13, 2018 San Francisco, California

Before: SCHROEDER and WATFORD, Circuit Judges, and KORMAN,** District Judge.

De’Marian Clemons suffered an ankle injury while incarcerated. He filed a 42

U.S.C. § 1983 suit against various prison officials and employees, alleging he

received improper medical care and was retaliated against when he subsequently

filed grievances. Clemons was permitted to carry on his suit in forma pauperis, but

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. the district court twice declined to appoint counsel: once at the outset of the litigation

and again in the midst of discovery. The Attorney General of Nevada accepted

service for all defendants except former Associate Warden Cheryl Burson, as she

was no longer an employee of the Nevada Department of Corrections. The district

court ultimately dismissed Burson from the case because she had not been properly

served. The court also dismissed or granted summary judgment in favor of the

defendants on all of Clemons’ claims, except his retaliation claim against Tanya Hill.

At trial, a jury found in favor of Hill on the sole surviving claim. Clemons challenges

the decision not to appoint counsel, to dismiss Burson, and to grant summary

judgment as to two other defendants.

1. A plaintiff proceeding in forma pauperis “must request service of the

summons and complaint by court officers before the officers will be responsible for

effecting such service.” Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir. 1991). We

need not decide whether that holding is reconcilable with the 1993 Amendments to

Federal Rule of Civil Procedure 4. We assume that Clemons was required to request

service before the court must order the U.S. Marshals to do so.

Nevertheless, under the circumstances of this case, it was impossible for

Clemons to serve Burson himself because he did not know her address and the

Nevada Attorney General would only disclose it under seal to the district judge.

2 Because Clemons, who was proceeding pro se and in forma pauperis, did not and

could not access this address, the district judge should have inquired if he wanted

the court to order the Marshals to effect service. The district court is directed to allow

Clemons to make such a request on remand.

2. “A district court’s refusal to appoint counsel pursuant to 28 U.S.C.

§ 1915(e)(1) is reviewed for an abuse of discretion.” Palmer v. Valdez, 560 F.3d 965,

970 (9th Cir. 2009). A court is authorized to appoint counsel to any person unable

to afford counsel upon a finding of “exceptional circumstances.” Id. “When

determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

likelihood of success on the merits as well as the ability of the petitioner to articulate

his claims pro se in light of the complexity of the legal issues involved.’” Id. (quoting

Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). “Neither of these factors is

dispositive and both must be viewed together . . . .” Wilborn v. Escalderon, 789 F.2d

1328, 1331 (9th Cir. 1986).

The district court abused its discretion in declining to appoint counsel. Not

only did the district court fail to consider the likelihood of Clemons’ success on the

merits, but it improperly discounted the complex legal issues presented in this case.

Without counsel and while incarcerated, Clemons was expected to locate a medical

expert willing to submit an affidavit on his behalf, manage discovery for his multi-

3 party multi-claim lawsuit, and conduct a full trial. Under these circumstances, the

district court’s conclusion that Clemons could adequately represent himself was an

abuse of discretion. The district court is directed to appoint counsel to represent

Clemons. If current pro bono counsel are able and willing to accept the assignment,

they should advise the district court following issuance of the mandate by this court.

3. Because the district court should have appointed counsel earlier in the

proceeding, the dismissal of Francisco Sanchez due to Clemons’ failure to file a

supporting medical affidavit, the grant of summary judgment as to defendants Brian

Williams and Cheryl Dressler, and the verdict in favor of Tanya Hill are all vacated.

See Huynh v. Callison, 700 F. App’x 637, 639 (9th Cir. 2017). Clemons must be

permitted to relitigate all of his claims with the assistance of counsel.

REVERSED IN PART, VACATED IN PART, and REMANDED.