2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES EMMETT FARR, Case No.: 16cv1279-JLS(MSB)
12 Plaintiff, ORDER: 13 v. (1) GRANTING PLAINTIFF’S MOTION TO 14 D. PARAMO, et al., CONTINUE DEADLINE TO OPPOSE 15 Defendants. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 16
17 AND
18 (2) DENYING PLAINTIFF’S SECOND 19 MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 82] 20 21 22 On August 26, 2019, Plaintiff James Emmett Farr filed a document entitled “Ex 23 Parte Motion to Apprise this Court of Plaintiff’s Inability to Prosecute This Case Due to 24 Circumstances Out of His Control,” which the Court accepted on discrepancy on 25 September 3, 2019. (See ECF Nos. 81 & 82.) In his filing, Plaintiff states that he is not 26 able to “adequately” prosecute this case because on July 18, 2019, he was placed in 27 administrative segregation by the nonparty staff at the Richard J. Donovan Correctional 2 personal property, legal notes, books and record of this litigation,” as well as access to 3 law library and writing supplies, which rendered him “incapable of properly, adequately 4 or fairly responding to Defendants’ Motion for Summary Judgement.” (Id. at 2-3, 8-9; 5 see also id. 10.) 6 The Court construes portions of Plaintiff’s filing [see id. at 2-3, 8-9], as a motion to 7 continue his deadline to oppose Defendants’ pending Motion for Summary Judgment. 8 On July 26, 2019, Defendants filed a Motion for Summary Judgment. (ECF No. 73.) The 9 Court issued a briefing schedule requiring Plaintiff to file an Opposition to Defendants’ 10 motion by September 9, 2019, and Defendants to file a Reply by September 19, 2019. 11 (ECF No. 74 at 2.) On September 16, 2019, Plaintiff filed a “Notice of Change of 12 Address” advising the Court that he had been transferred to the California State Prison 13 in Lancaster, California. (ECF No. 83.) 14 In light of Plaintiff’s recent placement in administrative segregation at RJD, and 15 his subsequent transfer to the California State Prison, the Court finds good cause to 16 continue Plaintiff’s deadline to oppose Defendants’ Motion for Summary Judgement. 17 Accordingly, the Court modifies its briefing schedule as follows: 18 1) Plaintiff shall file his Opposition to Defendants’ Motion for Summary 19 Judgement by October 25, 2019; and 20 2) Defendants may file a Reply by November 5, 2019. 21 In his filing, Plaintiff also asks the Court to “revisit [his] previous motions for 22 appointment of counsel and for TRO1.” (ECF No. 82 at 4; see also id. at 9.) With respect 23 to his request to appoint counsel, Plaintiff argues that he lacks legal training, has limited 24 25 1 On June 20, 2016, District Judge Sammartino issued an “Order Denying [Plaintiff’s] Motion for 26 Temporary Restraining Order and Preliminary Injunction.” (ECF No. 3.) Having consulted with the chambers of Judge Sammartino, the Court notes that to the extent Plaintiff seeks reconsideration of 27 the District Judge’s order [ECF No. 3], the request will be addressed in a separate order by the District 2 id. at 2-3, 8-9.) Plaintiff also appears to contend that the appointment of counsel is 3 warranted in light of his “Major Depression Disorder (MDD), Antisocial Personality 4 Disorder (ASPD), anxiety, and Post Traumatic Stress Disorder (PTSD).” (See id. at 4.) 5 The Constitution provides no right to appointment of counsel in a civil case unless 6 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. 7 Dep’t Soc. Servs., 452 U.S. 18, 25 (1981); see also Palmer v. Valdez, 560 F.3d 965, 970 8 (9th Cir. 2009) (finding no abuse of discretion in denying appointment of counsel in 9 Section 1983 action); Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 10 1994) (“[T]here is no absolute right to counsel in civil proceedings.”). However, under 11 28 U.S.C. § 1915(e)(1), courts have the authority to “request” that an attorney represent 12 indigent civil litigants upon a showing of “exceptional circumstances.” Agyeman v. Corr. 13 Corp. Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). When assessing 14 whether exceptional circumstances exist, courts must evaluate “the likelihood of the 15 plaintiff’s success on the merits” and “the plaintiff’s ability to articulate his claims ‘in 16 light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 17 789 F.2d 1328, 1331 (9th Cir. 1986)). Both of these factors must be reviewed before 18 deciding whether to appoint counsel, and neither factor is individually dispositive. 19 Wilborn, 789 F.2d at 1331. 20 The Court notes that on March 23, 2017, the District Judge denied Plaintiff’s 21 motion to appoint counsel. (See ECF No. 29.) In his initial motion, Plaintiff argued that 22 the appointment of counsel was warranted because he was in custody, had limited 23 education, the case was “highly complex,” he had mental health disabilities, lacked legal 24 knowledge, and had limited access to legal recourses. (See ECF No. 10.) The District 25 Judge found that Plaintiff had adequately litigated the case, had “a base understanding 26 of and ability to litigate this action,” that Plaintiff’s likelihood of success on the merits 27 was not clear, and that neither interests of justice nor exceptional circumstances 2 those asserted in his prior motion. (See ECF Nos. 10 & 82.) Having reviewed Plaintiff’s 3 additional arguments, the Court finds that they do not represent a basis for reversing 4 the Court’s prior decision. Since the District Judge’s denial of Plaintiff’s initial request to 5 appoint counsel, Plaintiff has drafted and submitted numerous documents without the 6 assistance of legal counsel. In addition to the instant filing, Plaintiff has submitted an 7 opposition to Defendants’ motion to dismiss [ECF No. 33], motion for extension of time 8 to file an opposition to Report and Recommendation [ECF No. 37], objection to Report 9 and Recommendation [ECF No. 39], letter to the Court’s Clerk regarding service of and 10 proposed Summons [ECF No. 41], “Motion for 1) Reconsideration of Partial Dismissal of 11 the Above Styled Cause and 2) Request for Leave to Amend and Supplement [Plaintiff’s] 12 § 1983 Claim” [ECF No. 46], “Objection to Deposition in Ex Parte” [ECF No. 66], and a 13 notice of change of address [ECF No. 83]. The above filings indicate that Plaintiff 14 continues to have a sufficient grasp of the issues in his case, and is able to articulate the 15 factual and legal basis of his claims. See Myers v. Basto, Case No.: 18cv2239-DMS(BLM), 16 2019 WL 265134, at *1-2 (S.D. Cal. Jan. 18, 2019) (finding that plaintiff failed to allege 17 the requisite “exceptional circumstances” warranting the appointment of counsel, 18 where the plaintiff argued that he was unable to afford counsel, had “very limited” 19 access to law library, and that “imprisonment [would] greatly limit his ability to litigate 20 properly.”); see also Garcia v. Blahnik, Case No.: 14cv875-LAB-BGS, 2016 WL 4269561, at 21 *3 (S.D. Cal. Aug. 15, 2016) (finding that appointment of counsel was not warranted 22 where, inter alia, “Plaintiff’s psychiatric disorder and limited access to the law library 23 ha[d] not prevented him from filing a well-articulated complaint and other motions with 24 the Court.”).
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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES EMMETT FARR, Case No.: 16cv1279-JLS(MSB)
12 Plaintiff, ORDER: 13 v. (1) GRANTING PLAINTIFF’S MOTION TO 14 D. PARAMO, et al., CONTINUE DEADLINE TO OPPOSE 15 Defendants. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 16
17 AND
18 (2) DENYING PLAINTIFF’S SECOND 19 MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 82] 20 21 22 On August 26, 2019, Plaintiff James Emmett Farr filed a document entitled “Ex 23 Parte Motion to Apprise this Court of Plaintiff’s Inability to Prosecute This Case Due to 24 Circumstances Out of His Control,” which the Court accepted on discrepancy on 25 September 3, 2019. (See ECF Nos. 81 & 82.) In his filing, Plaintiff states that he is not 26 able to “adequately” prosecute this case because on July 18, 2019, he was placed in 27 administrative segregation by the nonparty staff at the Richard J. Donovan Correctional 2 personal property, legal notes, books and record of this litigation,” as well as access to 3 law library and writing supplies, which rendered him “incapable of properly, adequately 4 or fairly responding to Defendants’ Motion for Summary Judgement.” (Id. at 2-3, 8-9; 5 see also id. 10.) 6 The Court construes portions of Plaintiff’s filing [see id. at 2-3, 8-9], as a motion to 7 continue his deadline to oppose Defendants’ pending Motion for Summary Judgment. 8 On July 26, 2019, Defendants filed a Motion for Summary Judgment. (ECF No. 73.) The 9 Court issued a briefing schedule requiring Plaintiff to file an Opposition to Defendants’ 10 motion by September 9, 2019, and Defendants to file a Reply by September 19, 2019. 11 (ECF No. 74 at 2.) On September 16, 2019, Plaintiff filed a “Notice of Change of 12 Address” advising the Court that he had been transferred to the California State Prison 13 in Lancaster, California. (ECF No. 83.) 14 In light of Plaintiff’s recent placement in administrative segregation at RJD, and 15 his subsequent transfer to the California State Prison, the Court finds good cause to 16 continue Plaintiff’s deadline to oppose Defendants’ Motion for Summary Judgement. 17 Accordingly, the Court modifies its briefing schedule as follows: 18 1) Plaintiff shall file his Opposition to Defendants’ Motion for Summary 19 Judgement by October 25, 2019; and 20 2) Defendants may file a Reply by November 5, 2019. 21 In his filing, Plaintiff also asks the Court to “revisit [his] previous motions for 22 appointment of counsel and for TRO1.” (ECF No. 82 at 4; see also id. at 9.) With respect 23 to his request to appoint counsel, Plaintiff argues that he lacks legal training, has limited 24 25 1 On June 20, 2016, District Judge Sammartino issued an “Order Denying [Plaintiff’s] Motion for 26 Temporary Restraining Order and Preliminary Injunction.” (ECF No. 3.) Having consulted with the chambers of Judge Sammartino, the Court notes that to the extent Plaintiff seeks reconsideration of 27 the District Judge’s order [ECF No. 3], the request will be addressed in a separate order by the District 2 id. at 2-3, 8-9.) Plaintiff also appears to contend that the appointment of counsel is 3 warranted in light of his “Major Depression Disorder (MDD), Antisocial Personality 4 Disorder (ASPD), anxiety, and Post Traumatic Stress Disorder (PTSD).” (See id. at 4.) 5 The Constitution provides no right to appointment of counsel in a civil case unless 6 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. 7 Dep’t Soc. Servs., 452 U.S. 18, 25 (1981); see also Palmer v. Valdez, 560 F.3d 965, 970 8 (9th Cir. 2009) (finding no abuse of discretion in denying appointment of counsel in 9 Section 1983 action); Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 10 1994) (“[T]here is no absolute right to counsel in civil proceedings.”). However, under 11 28 U.S.C. § 1915(e)(1), courts have the authority to “request” that an attorney represent 12 indigent civil litigants upon a showing of “exceptional circumstances.” Agyeman v. Corr. 13 Corp. Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). When assessing 14 whether exceptional circumstances exist, courts must evaluate “the likelihood of the 15 plaintiff’s success on the merits” and “the plaintiff’s ability to articulate his claims ‘in 16 light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 17 789 F.2d 1328, 1331 (9th Cir. 1986)). Both of these factors must be reviewed before 18 deciding whether to appoint counsel, and neither factor is individually dispositive. 19 Wilborn, 789 F.2d at 1331. 20 The Court notes that on March 23, 2017, the District Judge denied Plaintiff’s 21 motion to appoint counsel. (See ECF No. 29.) In his initial motion, Plaintiff argued that 22 the appointment of counsel was warranted because he was in custody, had limited 23 education, the case was “highly complex,” he had mental health disabilities, lacked legal 24 knowledge, and had limited access to legal recourses. (See ECF No. 10.) The District 25 Judge found that Plaintiff had adequately litigated the case, had “a base understanding 26 of and ability to litigate this action,” that Plaintiff’s likelihood of success on the merits 27 was not clear, and that neither interests of justice nor exceptional circumstances 2 those asserted in his prior motion. (See ECF Nos. 10 & 82.) Having reviewed Plaintiff’s 3 additional arguments, the Court finds that they do not represent a basis for reversing 4 the Court’s prior decision. Since the District Judge’s denial of Plaintiff’s initial request to 5 appoint counsel, Plaintiff has drafted and submitted numerous documents without the 6 assistance of legal counsel. In addition to the instant filing, Plaintiff has submitted an 7 opposition to Defendants’ motion to dismiss [ECF No. 33], motion for extension of time 8 to file an opposition to Report and Recommendation [ECF No. 37], objection to Report 9 and Recommendation [ECF No. 39], letter to the Court’s Clerk regarding service of and 10 proposed Summons [ECF No. 41], “Motion for 1) Reconsideration of Partial Dismissal of 11 the Above Styled Cause and 2) Request for Leave to Amend and Supplement [Plaintiff’s] 12 § 1983 Claim” [ECF No. 46], “Objection to Deposition in Ex Parte” [ECF No. 66], and a 13 notice of change of address [ECF No. 83]. The above filings indicate that Plaintiff 14 continues to have a sufficient grasp of the issues in his case, and is able to articulate the 15 factual and legal basis of his claims. See Myers v. Basto, Case No.: 18cv2239-DMS(BLM), 16 2019 WL 265134, at *1-2 (S.D. Cal. Jan. 18, 2019) (finding that plaintiff failed to allege 17 the requisite “exceptional circumstances” warranting the appointment of counsel, 18 where the plaintiff argued that he was unable to afford counsel, had “very limited” 19 access to law library, and that “imprisonment [would] greatly limit his ability to litigate 20 properly.”); see also Garcia v. Blahnik, Case No.: 14cv875-LAB-BGS, 2016 WL 4269561, at 21 *3 (S.D. Cal. Aug. 15, 2016) (finding that appointment of counsel was not warranted 22 where, inter alia, “Plaintiff’s psychiatric disorder and limited access to the law library 23 ha[d] not prevented him from filing a well-articulated complaint and other motions with 24 the Court.”). Further, although Plaintiff alleges that he could not adequately litigate this 25 case because his access to writing supplies, case file, and other legal materials was 26 limited while he was in administrative segregation at RJD, since the filing of the instant 27 motion, Plaintiff has been transferred to a different correctional institution, and the 1 || Court has extended Plaintiff’s deadline to oppose Defendants’ Motion for Summary 2 Judgment by over a month. 3 Plaintiff's claims do not appear to be particularly complex, and to date, Plaintiff 4 ||has adequately articulated his claims and legal arguments without the assistance of legal 5 counsel. The Court finds that neither the interests of justice nor exceptional 6 || circumstances warrant appointment of counsel. Accordingly, the Court DENIES without 7 || prejudice Plaintiff’s second motion to appoint counsel. See Agyeman, 390 F.3d at 1103; 8 ||see also Wilborn, 789 F.2d at 1331. 9 IT IS SO ORDERED. 10 ||Dated: September 24, 2019 = _ 2 FF D Honorable Michael S. Berg United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28