1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM HEARN, CDCR #AS-7111, Case No.: 22-cv-255-AGS-DDL
12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 RJD WARDEN, et al., MOTION TO APPOINT 15 Defendants. COUNSEL WITHOUT PREJUDICE; 16 (2) GRANTING PLAINTIFF’S 17 MOTION TO EFFECT 18 SERVICE OF SECOND AMENDED COMPLAINT AND 19 SUMMONS VIA UNITED 20 STATES MARSHALS SERVICE; and 21 22 (3) DEFERRING RULING ON DEFENDANTS’ MOTION TO 23 DISMISS 24 [Dkt. Nos. 54, 55] 25 26 Plaintiff William Hearn (“Plaintiff”), an inmate previously incarcerated at Richard 27 J. Donovan Correctional Facility in San Diego, California, is proceeding pro se and in 28 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court 1 are (1) Plaintiff’s Second Motion to Appoint Counsel (“Motion for Counsel”) [Dkt. No. 2 54]; (2) Plaintiff’s Motion to Effectuate Service of the Second Amended Complaint and 3 Summons via the United States Marshals Service (“Motion for Service”) [Dkt. No. 55]; 4 and (3) Defendants M. Pollard and E. Frijas’s Motion to Dismiss Plaintiff’s Second 5 Amended Complaint (“Motion to Dismiss”) [Dkt. No. 59]. For the reasons that follow, the 6 Court DENIES the Motion for Counsel; GRANTS the Motion for Service; and defers 7 ruling on the Motion to Dismiss pending filing of a responsive pleading by the newly 8 served Defendants. 9 I. 10 BACKGROUND 11 Plaintiff filed his original complaint on February 24, 2022, alleging that Defendants 12 violated his rights under the First and Eighth Amendments to the United States 13 Constitution. See generally Dkt. No. 1. Plaintiff concurrently moved to proceed in forma 14 pauperis. Dkt. No. 2. By order dated June 13, 2022, the District Judge granted the in 15 forma pauperis motion, dismissed some—but not all—of Plaintiff’s claims pursuant to the 16 sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and directed 17 service of the complaint by the United States Marshals Service (“USMS”). 18 See Dkt. No. 5. 19 On September 29, 2022, Defendants M. Pollard and E. Frijas filed a motion to 20 dismiss Plaintiff’s original complaint. Dkt. No. 15. On October 20, 2022, Plaintiff filed 21 his opposition to the motion to dismiss. Dkt. No. 25. On November 17, 2022, before 22 briefing was complete on the first motion to dismiss, Plaintiff filed a First Amended 23 Complaint and his first motion for appointment of counsel. Dkt. Nos. 26, 27. On 24 December 2, 2022, the undersigned denied Plaintiff’s motion for appointment of counsel 25 without prejudice. Dkt. No. 29 at 3-5. 26 On December 14, 2022, the undersigned issued a Report and Recommendation to 27 the District Judge to deny the first motion to dismiss as moot in light of Plaintiff’s filing of 28 the First Amended Complaint. Dkt. No. 30. The parties filed briefing on Defendants’ 1 objection to the Report and Recommendation. Dkt. Nos. 31, 32. Before the District Judge 2 issued an order on the Report and Recommendation, Plaintiff filed a motion for leave to 3 file a second amended complaint, a proposed second amended complaint, and a motion for 4 an order directing service of the complaint by the USMS. Dkt. Nos. 34, 35, 36. On 5 September 6, 2023, the District Judge issued an order adopting the Report and 6 Recommendation; overruling Defendants’ objection thereto and ruling that the First 7 Amended Complaint superseded the original complaint; and denying the first motion to 8 dismiss as moot. See Dkt. No. 40. 9 On September 11, 2023, the undersigned issued an order granting Plaintiff leave to 10 file a second amended complaint; rejecting the proposed second amended complaint and 11 directing Plaintiff to re-file a second amended complaint subject to specific requirements; 12 and denying Plaintiff’s motion for an order directing service by the USMS. See generally 13 Dkt. No. 41. On October 19, 2023, Plaintiff filed a second version of the second amended 14 complaint; a renewed motion for an order directing service of the complaint by the USMS; 15 and a renewed motion for leave to file a second amended complaint. Dkt. Nos. 46, 47, 48. 16 On November 8, 2023, the Court held a Status Conference to address Plaintiff’s motions. 17 On November 13, 2023, the Court issued an order striking the second version of Plaintiff’s 18 second amended complaint due to Plaintiff’s failure to comply with the requirements set 19 forth in the Court’s September 11 order; denying as moot Plaintiff’s renewed motion for 20 leave to file a second amended complaint; and directing Plaintiff to file a second amended 21 complaint that complied with the requirements of the September 11 order. Dkt. No. 52. 22 On November 30, 2023, Plaintiff filed the operative Second Amended Complaint, 23 the instant Motion for Counsel, and the instant Motion for Service. Dkt. Nos. 53, 54, 55. 24 On January 10, 2024, Defendants M. Pollard and E. Frijas filed an opposition to the Motion 25 for Counsel and the instant Motion to Dismiss. Dkt. Nos. 58, 59. 26 / / / 27 / / / 28 / / / 1 II. 2 DISCUSSION 3 A. Plaintiff’s Motion for Counsel 4 “There is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 5 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). However, District Courts have discretion 6 to “request” that an attorney represent indigent civil litigants upon a showing of 7 “exceptional circumstances.” See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 8 Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). “That a pro se litigant may be 9 better served with the assistance of counsel is not the test.” Okler v. MCC IMU Prison, 10 No. 3:18-cv-05458-RJB-TLF, 2019 WL 461143, at *1 (W.D. Wash. Feb. 5, 2019). Instead, 11 the Court “must determine whether . . . there is a likelihood of success on the merits” and 12 whether “the prisoner is unable to articulate his claims in light of the complexity of the 13 legal issues involved.” Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014). Neither 14 factor is “dispositive” but “must be considered cumulatively.” Id. 15 In the Court’s order denying Plaintiff’s first motion for appointment of counsel, the 16 Court determined that “[a]t this early stage of the proceedings, there is no basis upon which 17 the Court can predict Plaintiff’s success at trial.” Dkt. No. 29 at 3 (citation omitted). The 18 current procedural posture of the case does not differ significantly from where it was at the 19 time of Plaintiff’s first motion for appointment of counsel, and it remains too soon for the 20 Court to predict Plaintiff’s likelihood of success on the merits of his case. Additionally, 21 the Court addressed Plaintiff’s ability to pursue his claims in the context of each of the six 22 factors Plaintiff asserted in support of his motion for appointment of counsel, and which 23 factors Plaintiff re-asserts in support of the instant Motion for Counsel. See id. at 3-5; see 24 also Dkt. No. 54 at 2. In its prior order, the Court concluded that “none of the factors 25 identified by Plaintiff, alone or in combination, demonstrate that he is unable to articulate 26 his claims or advocate for himself in this action.” Dkt. No. 29 at 5.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM HEARN, CDCR #AS-7111, Case No.: 22-cv-255-AGS-DDL
12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 RJD WARDEN, et al., MOTION TO APPOINT 15 Defendants. COUNSEL WITHOUT PREJUDICE; 16 (2) GRANTING PLAINTIFF’S 17 MOTION TO EFFECT 18 SERVICE OF SECOND AMENDED COMPLAINT AND 19 SUMMONS VIA UNITED 20 STATES MARSHALS SERVICE; and 21 22 (3) DEFERRING RULING ON DEFENDANTS’ MOTION TO 23 DISMISS 24 [Dkt. Nos. 54, 55] 25 26 Plaintiff William Hearn (“Plaintiff”), an inmate previously incarcerated at Richard 27 J. Donovan Correctional Facility in San Diego, California, is proceeding pro se and in 28 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court 1 are (1) Plaintiff’s Second Motion to Appoint Counsel (“Motion for Counsel”) [Dkt. No. 2 54]; (2) Plaintiff’s Motion to Effectuate Service of the Second Amended Complaint and 3 Summons via the United States Marshals Service (“Motion for Service”) [Dkt. No. 55]; 4 and (3) Defendants M. Pollard and E. Frijas’s Motion to Dismiss Plaintiff’s Second 5 Amended Complaint (“Motion to Dismiss”) [Dkt. No. 59]. For the reasons that follow, the 6 Court DENIES the Motion for Counsel; GRANTS the Motion for Service; and defers 7 ruling on the Motion to Dismiss pending filing of a responsive pleading by the newly 8 served Defendants. 9 I. 10 BACKGROUND 11 Plaintiff filed his original complaint on February 24, 2022, alleging that Defendants 12 violated his rights under the First and Eighth Amendments to the United States 13 Constitution. See generally Dkt. No. 1. Plaintiff concurrently moved to proceed in forma 14 pauperis. Dkt. No. 2. By order dated June 13, 2022, the District Judge granted the in 15 forma pauperis motion, dismissed some—but not all—of Plaintiff’s claims pursuant to the 16 sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and directed 17 service of the complaint by the United States Marshals Service (“USMS”). 18 See Dkt. No. 5. 19 On September 29, 2022, Defendants M. Pollard and E. Frijas filed a motion to 20 dismiss Plaintiff’s original complaint. Dkt. No. 15. On October 20, 2022, Plaintiff filed 21 his opposition to the motion to dismiss. Dkt. No. 25. On November 17, 2022, before 22 briefing was complete on the first motion to dismiss, Plaintiff filed a First Amended 23 Complaint and his first motion for appointment of counsel. Dkt. Nos. 26, 27. On 24 December 2, 2022, the undersigned denied Plaintiff’s motion for appointment of counsel 25 without prejudice. Dkt. No. 29 at 3-5. 26 On December 14, 2022, the undersigned issued a Report and Recommendation to 27 the District Judge to deny the first motion to dismiss as moot in light of Plaintiff’s filing of 28 the First Amended Complaint. Dkt. No. 30. The parties filed briefing on Defendants’ 1 objection to the Report and Recommendation. Dkt. Nos. 31, 32. Before the District Judge 2 issued an order on the Report and Recommendation, Plaintiff filed a motion for leave to 3 file a second amended complaint, a proposed second amended complaint, and a motion for 4 an order directing service of the complaint by the USMS. Dkt. Nos. 34, 35, 36. On 5 September 6, 2023, the District Judge issued an order adopting the Report and 6 Recommendation; overruling Defendants’ objection thereto and ruling that the First 7 Amended Complaint superseded the original complaint; and denying the first motion to 8 dismiss as moot. See Dkt. No. 40. 9 On September 11, 2023, the undersigned issued an order granting Plaintiff leave to 10 file a second amended complaint; rejecting the proposed second amended complaint and 11 directing Plaintiff to re-file a second amended complaint subject to specific requirements; 12 and denying Plaintiff’s motion for an order directing service by the USMS. See generally 13 Dkt. No. 41. On October 19, 2023, Plaintiff filed a second version of the second amended 14 complaint; a renewed motion for an order directing service of the complaint by the USMS; 15 and a renewed motion for leave to file a second amended complaint. Dkt. Nos. 46, 47, 48. 16 On November 8, 2023, the Court held a Status Conference to address Plaintiff’s motions. 17 On November 13, 2023, the Court issued an order striking the second version of Plaintiff’s 18 second amended complaint due to Plaintiff’s failure to comply with the requirements set 19 forth in the Court’s September 11 order; denying as moot Plaintiff’s renewed motion for 20 leave to file a second amended complaint; and directing Plaintiff to file a second amended 21 complaint that complied with the requirements of the September 11 order. Dkt. No. 52. 22 On November 30, 2023, Plaintiff filed the operative Second Amended Complaint, 23 the instant Motion for Counsel, and the instant Motion for Service. Dkt. Nos. 53, 54, 55. 24 On January 10, 2024, Defendants M. Pollard and E. Frijas filed an opposition to the Motion 25 for Counsel and the instant Motion to Dismiss. Dkt. Nos. 58, 59. 26 / / / 27 / / / 28 / / / 1 II. 2 DISCUSSION 3 A. Plaintiff’s Motion for Counsel 4 “There is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 5 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). However, District Courts have discretion 6 to “request” that an attorney represent indigent civil litigants upon a showing of 7 “exceptional circumstances.” See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 8 Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). “That a pro se litigant may be 9 better served with the assistance of counsel is not the test.” Okler v. MCC IMU Prison, 10 No. 3:18-cv-05458-RJB-TLF, 2019 WL 461143, at *1 (W.D. Wash. Feb. 5, 2019). Instead, 11 the Court “must determine whether . . . there is a likelihood of success on the merits” and 12 whether “the prisoner is unable to articulate his claims in light of the complexity of the 13 legal issues involved.” Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014). Neither 14 factor is “dispositive” but “must be considered cumulatively.” Id. 15 In the Court’s order denying Plaintiff’s first motion for appointment of counsel, the 16 Court determined that “[a]t this early stage of the proceedings, there is no basis upon which 17 the Court can predict Plaintiff’s success at trial.” Dkt. No. 29 at 3 (citation omitted). The 18 current procedural posture of the case does not differ significantly from where it was at the 19 time of Plaintiff’s first motion for appointment of counsel, and it remains too soon for the 20 Court to predict Plaintiff’s likelihood of success on the merits of his case. Additionally, 21 the Court addressed Plaintiff’s ability to pursue his claims in the context of each of the six 22 factors Plaintiff asserted in support of his motion for appointment of counsel, and which 23 factors Plaintiff re-asserts in support of the instant Motion for Counsel. See id. at 3-5; see 24 also Dkt. No. 54 at 2. In its prior order, the Court concluded that “none of the factors 25 identified by Plaintiff, alone or in combination, demonstrate that he is unable to articulate 26 his claims or advocate for himself in this action.” Dkt. No. 29 at 5. For the reasons stated 27 as to each factor in the Court’s prior order, the same remains true of the instant Motion for 28 Counsel. Accordingly, the Motion for Counsel is DENIED WITHOUT PREJUDICE. 1 B. Plaintiff’s Motion for Service 2 In the Second Amended Complaint, Plaintiff identifies three Doe Defendants by 3 name as J. Cepeda, S. Mancilla Bravo, and I. Alfaro, all of whom Plaintiff alleges are 4 correctional staff at Richard J. Donovan Correctional Facility. Dkt. No. 53 at ¶ 2. Plaintiff 5 has requested that the Court issue an order directing “the U.S. Marshal to serve a copy of 6 the Complaint and summons upon J. Cepeda, S. Mancilla Bravo, [and] I. Alfaro as directed 7 by Hearn on the USM Form 285 provided, and to file executed waivers of personal service 8 upon each of these Defendants with the Clerk of Court as soon as possible after their 9 return.” Dkt. No. 55 at 2. Given that Plaintiff has named new Defendants, service of the 10 Second Amended Complaint and summons upon each new Defendant is required. The 11 Motion for Service is GRANTED as to service upon Defendants J. Cepeda, S. Mancilla 12 Bravo, and I. Alfaro, subject to further instructions set forth herein. 13 C. Defendants M. Pollard and E. Frijas’s Motion to Dismiss 14 In light of the Court’s Order directing service of the Second Amended Complaint 15 upon the newly named Defendants, the Court defers ruling on the pending Motion to 16 Dismiss filed by Defendants M. Pollard and E. Frijas. Doing so allows time for service of 17 the Second Amended Complaint upon the new Defendants and for the new Defendants to 18 respond to the Second Amended Complaint. At the present time, Plaintiff is directed not 19 to file any response to the Motion to Dismiss filed by Defendants M. Pollard and E. Frijas. 20 The Court will issue further instructions for briefing any motions after service of Second 21 Amended Complaint and responses thereto have been completed. 22 ORDER 23 For the reasons set forth above, the Court ORDERS as follows: 24 1. Plaintiff has not met his burden to establish exceptional circumstances 25 warranting the appointment of counsel. Plaintiff’s Motion for Counsel [Dkt. No. 54] 26 is therefore DENIED WITHOUT PREJUDICE. Plaintiff may renew his request 27 if his situation changes such that he can make the necessary showing that he is both 28 / / / 1 likely to succeed on the merits of his claims and unable to competently articulate 2 those claims. Cano, 739 F.3d at 1219. 3 2. Plaintiff’s Motion for Service by the United States Marshals Service is 4 GRANTED with respect to service of the Second Amended Complaint upon newly 5 named Defendants J. Cepeda, S. Mancilla Bravo, and I. Alfaro. The Court directs 6 as follows in order to effectuate service of the Second Amended Complaint: 7 a. The Clerk of Court is DIRECTED to issue a summons as to 8 Plaintiff’s Second Amended Complaint [Dkt. No. 53] upon 9 Defendants J. Cepeda, S. Mancilla Bravo, and I. Alfaro and to 10 forward the summons to Plaintiff along with a blank Form USM- 11 285 for each of these Defendants. In addition, the Clerk will provide 12 Plaintiff with a certified copy of this Order, certified copies of the 13 Second Amended Complaint, and a certified copy of the Court’s 14 June 13, 2022, Order Granting Motion to Proceed In Forma 15 Pauperis [Dkt. No. 5] so that he may serve Defendants J. Cepeda, 16 S. Mancilla Bravo, and I. Alfaro. Upon receipt of this “IFP 17 Package,” Plaintiff must complete the Form USM-285s as 18 completely and accurately as possible, including an address where 19 each newly named Defendant may be served, pursuant to Civil 20 Local Rule 4.1(c), and return them to the U.S. Marshal according to 21 the instructions the Clerk provides in the letter accompanying his 22 IFP Package. 23 b. The U.S. Marshal is ORDERED to serve copies of the Second 24 Amended Complaint and summons upon Defendants J. Cepeda, S. 25 Mancilla Bravo, and I. Alfaro as directed by Plaintiff on the Form 26 USM-285s provided to him. All costs of that service will be 27 advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. 28 Civ. P. 4(c)(3). 1 c. All new Defendants, once served, are ORDERED to respond to 2 Plaintiff's Second Amended Complaint within the time period 3 provided by the applicable provisions of Federal Rule of Civil 4 Procedure 12(a) and 42 U.S.C. § 1997e(g)(2). 5 d. After service has been effectuated by the U.S. Marshal, Plaintiff is 6 ORDERED to serve upon Defendants, or if appearance has been 7 entered by counsel, upon Defendants’ counsel, a copy of every 8 further pleading, motion, or other document submitted for the 9 Court’s consideration pursuant to Federal Rule of Civil Procedure 10 5(b). Plaintiff must include with every original document he seeks 11 to file with the Clerk of Court a certificate stating the manner in 12 which a true and correct copy of that document was served on 13 Defendants or Defendants’ counsel, and the date of service. See 14 CivLR 5.2. Any document received by the Court which has not been 15 properly filed with the Clerk or which fails to include a Certificate 16 of Service upon Defendants or Defendants’ counsel may be 17 disregarded. 18 e. Plaintiff need take no additional action in this case until after he has 19 served all Defendants named in the Second Amended Complaint 20 and they have had an opportunity to respond. 21 f. Defendants M. Pollard and E. Frijas shall not file any further 22 response absent an order of the Court. 23 IT IS SO ORDERED. 24 Dated: January 24, 2024 _—
7 United States Magistrate Judge 28