1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 HENRY A. JONES, JR., Case No.: 3:21-cv-0162-MMA-BGS
9 Plaintiff, ORDER: 10 v. (1) GRANTING DEFENDANT’S EX PARTE APPLICATION TO 11 MARCUS POLLARD, Warden, MODIFY THE SCHEDULING 12 ORDER Defendant. (2) DENYING PLAINTIFF’S 13 SECOND MOTION FOR 14 APPOINTMENT OF COUNSEL 15 (3) ADDRESSING OTHER 16 FILINGS AND SUBMISSIONS BY PLAINITFF 17
18 [ECF 52, 65, 68, 72] 19 20 21 I. INTRODUCTION 22 Plaintiff, a state prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983 23 alleging Defendant was deliberately indifferent to his health and safety in violation of the 24 Eighth Amendment based on the quarantining of inmates with COVID-19 in the mental 25 health building he was housed in at R.J. Donovan (“RJD”). (ECF 1; see also ECF 39 at 2- 26 4 (summarizing allegations of the Complaint).) 27 Plaintiff has filed a second Motion for the Appointment of Counsel (ECF 65) and a 28 filing that appears to seek judicial notice and sanctions (ECF 52). Additionally, Plaintiff 1 has also submitted a document captioned “Motion to Compel” followed by “Motion Under 2 Seal and Not for the AG Viewing,” and submitted a document that appear to be related to 3 settlement. 4 Defendant has filed an Ex Parte Application to Modify the Scheduling Order. (ECF 5 68), and a Status Report seeking to modify the Scheduling Order. (ECF 72.) 6 For the reasons set forth below Plaintiff’s Motion to Appoint Counsel and his other 7 requests are DENIED and Defendant’s requests to amend the Scheduling Order are 8 GRANTED as set forth below. The Court has additionally addressed Plaintiff’s settlement- 9 related submission to the Court. 10 II. BACKGROUND 11 Plaintiff’s Complaint alleges that he was exposed to and contracted COVID-19 12 because prisoners infected with COVID-19 were housed in the mental health building at 13 RJD despite his complaints and the complaint of other prisoners already housed there and 14 not infected. (ECF 1 at 12.) The Complaint lists numerous grievances Plaintiff filed in May 15 and June 2020 related to his underlying health conditions and his efforts to be released on 16 that basis. (Id.) The Complaint also alleges that on December 6, 2020 an infected inmate 17 in a particular cell for several hours and then the following day all the inmates were tested 18 for and then notified they had COVID-19. (Id. at 12-13.) 19 III. DISCUSSION 20 A. Motion for Appointment of Counsel 21 Plaintiff has filed second1 Motion for Appointment of Counsel. (ECF 65.) Plaintiff 22 argues he is entitled to appointment of counsel because of the complexity of this case, that 23 it involves medical issues, and that the conditions in the prison, including general 24 allegations of violence and lack of access to the law library. (Id. at 1-2.) Plaintiff also argues 25 26 27 28 1 this case is more complex than another of his cases where counsel was appointed (Id. at 2 2 (citing Jones v. Kuppinger, Case No. 2:13-cv-045).) 3 1. Legal Standard 4 “[T]here is no constitutional right to appointed counsel for § 1983 claims . . . .” 5 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also Palmer v. Valdez, 6 560 F.3d 965, 970 (9th Cir. 2009) (“Generally, a person has no right to counsel in civil 7 actions.”). “However, a court may under ‘exceptional circumstances’ appoint counsel for 8 indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer, 560 F.3d at 760 9 (citing Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)). “When 10 determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 11 likelihood of success on the merits as well as the ability of the petitioner to articulate his 12 claims pro se in light of the complexity of the legal issues involved.” Id. (quoting 13 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Cano v Taylor, 739 F.3d 14 1214, 1218 (9th Cir. 2014). “Neither of these considerations is dispositive and instead 15 must be viewed together.” Palmer, 560 F.3d at 760 16 2. Analysis 17 Plaintiff has not shown exceptional circumstances warranting appointment of 18 counsel. Plaintiff has demonstrated his ability to present both factual and legal arguments, 19 and he appears to have a sufficient understanding of the legal process. As noted in the prior 20 Order denying appointment of counsel, his pleadings survived screening. (ECF 25 at 3.) 21 Additionally, since that denial, Plaintiff has filed an Opposition to a Motion to Dismiss 22 (ECF 33), filed a request for a preliminary injunction he obtained leave to amend (ECF 40, 23 45, 47), and participated in an Early Neutral Evaluation and Case Management Conference. 24 (ECF 62). Additionally, it does not appear that the legal issues involved are so complex 25 that counsel is warranted at this stage of the proceedings. See Wilbron v. Escalderon, 789 26 F.2d 1328, 1331 (noting that, “[i]f all that was required to establish successfully the 27 28 1 complexity of the relevant issues was a demonstration of the need for development of 2 further facts, practically all cases would involve complex legal issues.”).2 3 As to his likelihood of success on the merits, as noted above, Plaintiff has had some 4 success at the pleading stage of this case. However, when his likelihood of success is 5 considered in conjunction with his ability to articulate his claims and the complexity of the 6 issues involved, he has not shown exceptional circumstances justifying appointment of 7 counsel. Accordingly, the Court DENIES Plaintiff’s request for appointment of counsel. 8 (ECF 65.) 9 B. Plaintiff’s Additional Filings and Submissions 10 1. Request to file sanctions and judicial notice 11 Plaintiff submitted a filing captioned “Motion: Requesting to File Sanctions on 12 Defendant; Motion: Requesting the Court to Take Judicial Notice.” (ECF 52 at 1.3) The 13 filing requests “the Courts to Take Judicial Notice : On why I’m not being release[d] Back 14 to my Facility” and “Requesting the Courts to Sanction the Attorney General . . . for having 15 B. Ebert who’s acting in concert and a conspiracy to provide the court with misinformation, 16 with falsifying court proceedings with Perjury declarations.” (Id.) As an initial matter, this 17 is not a proper motion, however, the Court attempts to treat it as such. 18 Plaintiff’s filing indicates he disputes B. Ebert’s statement, provided in support of 19 Defendant’s Opposition to Plaintiff’s request for a TRO, that Covid-19 is no longer active 20 and Plaintiff’s transfer back to Donovan is speculative. (ECF 51 at 2.) Plaintiff argues that 21 these statements are false and were made to give the impression Plaintiff was not returning 22 to Donovan in the foreseeable future. (ECF 52 at 2.) He quotes a portion of Defendant’s 23 brief opposing the TRO that argues Plaintiff’s claims based on a facility he is not in are not 24 25 26 2 It appears that Plaintiff was only appointed counsel in the case he cited as being less 27 complex than this one for purposes of a settlement conference, initially, and then later in the case for trial. It does not appear he was appointed counsel at this stage of that case. 28 1 cognizable. (Id. at 2.) He seems to think B. Ebert’s declaration that his return to Donovan 2 is speculative is part of a conspiracy to keep him from returning to Donovan to undercut 3 his claim for injunctive relief at a facility where he is not housed. (Id.
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 HENRY A. JONES, JR., Case No.: 3:21-cv-0162-MMA-BGS
9 Plaintiff, ORDER: 10 v. (1) GRANTING DEFENDANT’S EX PARTE APPLICATION TO 11 MARCUS POLLARD, Warden, MODIFY THE SCHEDULING 12 ORDER Defendant. (2) DENYING PLAINTIFF’S 13 SECOND MOTION FOR 14 APPOINTMENT OF COUNSEL 15 (3) ADDRESSING OTHER 16 FILINGS AND SUBMISSIONS BY PLAINITFF 17
18 [ECF 52, 65, 68, 72] 19 20 21 I. INTRODUCTION 22 Plaintiff, a state prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983 23 alleging Defendant was deliberately indifferent to his health and safety in violation of the 24 Eighth Amendment based on the quarantining of inmates with COVID-19 in the mental 25 health building he was housed in at R.J. Donovan (“RJD”). (ECF 1; see also ECF 39 at 2- 26 4 (summarizing allegations of the Complaint).) 27 Plaintiff has filed a second Motion for the Appointment of Counsel (ECF 65) and a 28 filing that appears to seek judicial notice and sanctions (ECF 52). Additionally, Plaintiff 1 has also submitted a document captioned “Motion to Compel” followed by “Motion Under 2 Seal and Not for the AG Viewing,” and submitted a document that appear to be related to 3 settlement. 4 Defendant has filed an Ex Parte Application to Modify the Scheduling Order. (ECF 5 68), and a Status Report seeking to modify the Scheduling Order. (ECF 72.) 6 For the reasons set forth below Plaintiff’s Motion to Appoint Counsel and his other 7 requests are DENIED and Defendant’s requests to amend the Scheduling Order are 8 GRANTED as set forth below. The Court has additionally addressed Plaintiff’s settlement- 9 related submission to the Court. 10 II. BACKGROUND 11 Plaintiff’s Complaint alleges that he was exposed to and contracted COVID-19 12 because prisoners infected with COVID-19 were housed in the mental health building at 13 RJD despite his complaints and the complaint of other prisoners already housed there and 14 not infected. (ECF 1 at 12.) The Complaint lists numerous grievances Plaintiff filed in May 15 and June 2020 related to his underlying health conditions and his efforts to be released on 16 that basis. (Id.) The Complaint also alleges that on December 6, 2020 an infected inmate 17 in a particular cell for several hours and then the following day all the inmates were tested 18 for and then notified they had COVID-19. (Id. at 12-13.) 19 III. DISCUSSION 20 A. Motion for Appointment of Counsel 21 Plaintiff has filed second1 Motion for Appointment of Counsel. (ECF 65.) Plaintiff 22 argues he is entitled to appointment of counsel because of the complexity of this case, that 23 it involves medical issues, and that the conditions in the prison, including general 24 allegations of violence and lack of access to the law library. (Id. at 1-2.) Plaintiff also argues 25 26 27 28 1 this case is more complex than another of his cases where counsel was appointed (Id. at 2 2 (citing Jones v. Kuppinger, Case No. 2:13-cv-045).) 3 1. Legal Standard 4 “[T]here is no constitutional right to appointed counsel for § 1983 claims . . . .” 5 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); see also Palmer v. Valdez, 6 560 F.3d 965, 970 (9th Cir. 2009) (“Generally, a person has no right to counsel in civil 7 actions.”). “However, a court may under ‘exceptional circumstances’ appoint counsel for 8 indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer, 560 F.3d at 760 9 (citing Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)). “When 10 determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 11 likelihood of success on the merits as well as the ability of the petitioner to articulate his 12 claims pro se in light of the complexity of the legal issues involved.” Id. (quoting 13 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Cano v Taylor, 739 F.3d 14 1214, 1218 (9th Cir. 2014). “Neither of these considerations is dispositive and instead 15 must be viewed together.” Palmer, 560 F.3d at 760 16 2. Analysis 17 Plaintiff has not shown exceptional circumstances warranting appointment of 18 counsel. Plaintiff has demonstrated his ability to present both factual and legal arguments, 19 and he appears to have a sufficient understanding of the legal process. As noted in the prior 20 Order denying appointment of counsel, his pleadings survived screening. (ECF 25 at 3.) 21 Additionally, since that denial, Plaintiff has filed an Opposition to a Motion to Dismiss 22 (ECF 33), filed a request for a preliminary injunction he obtained leave to amend (ECF 40, 23 45, 47), and participated in an Early Neutral Evaluation and Case Management Conference. 24 (ECF 62). Additionally, it does not appear that the legal issues involved are so complex 25 that counsel is warranted at this stage of the proceedings. See Wilbron v. Escalderon, 789 26 F.2d 1328, 1331 (noting that, “[i]f all that was required to establish successfully the 27 28 1 complexity of the relevant issues was a demonstration of the need for development of 2 further facts, practically all cases would involve complex legal issues.”).2 3 As to his likelihood of success on the merits, as noted above, Plaintiff has had some 4 success at the pleading stage of this case. However, when his likelihood of success is 5 considered in conjunction with his ability to articulate his claims and the complexity of the 6 issues involved, he has not shown exceptional circumstances justifying appointment of 7 counsel. Accordingly, the Court DENIES Plaintiff’s request for appointment of counsel. 8 (ECF 65.) 9 B. Plaintiff’s Additional Filings and Submissions 10 1. Request to file sanctions and judicial notice 11 Plaintiff submitted a filing captioned “Motion: Requesting to File Sanctions on 12 Defendant; Motion: Requesting the Court to Take Judicial Notice.” (ECF 52 at 1.3) The 13 filing requests “the Courts to Take Judicial Notice : On why I’m not being release[d] Back 14 to my Facility” and “Requesting the Courts to Sanction the Attorney General . . . for having 15 B. Ebert who’s acting in concert and a conspiracy to provide the court with misinformation, 16 with falsifying court proceedings with Perjury declarations.” (Id.) As an initial matter, this 17 is not a proper motion, however, the Court attempts to treat it as such. 18 Plaintiff’s filing indicates he disputes B. Ebert’s statement, provided in support of 19 Defendant’s Opposition to Plaintiff’s request for a TRO, that Covid-19 is no longer active 20 and Plaintiff’s transfer back to Donovan is speculative. (ECF 51 at 2.) Plaintiff argues that 21 these statements are false and were made to give the impression Plaintiff was not returning 22 to Donovan in the foreseeable future. (ECF 52 at 2.) He quotes a portion of Defendant’s 23 brief opposing the TRO that argues Plaintiff’s claims based on a facility he is not in are not 24 25 26 2 It appears that Plaintiff was only appointed counsel in the case he cited as being less 27 complex than this one for purposes of a settlement conference, initially, and then later in the case for trial. It does not appear he was appointed counsel at this stage of that case. 28 1 cognizable. (Id. at 2.) He seems to think B. Ebert’s declaration that his return to Donovan 2 is speculative is part of a conspiracy to keep him from returning to Donovan to undercut 3 his claim for injunctive relief at a facility where he is not housed. (Id. at 1-2.) 4 While Plaintiff characterizes the declaration as some sort of nefarious tactic intended 5 to mislead the court that warrant sanctions, he is essentially disagreeing with the 6 declaration. His disagreement with the declaration is not a sufficient reason for sanctions. 7 Accordingly, to the extent the filing could be construed as a request for sanctions or leave 8 to file a motion for sanctions, it is DENIED. 9 2. Other Submissions 10 Plaintiff has also submitted a document captioned “Motion to Compel” followed by 11 “Motion Under Seal and Not for the AG Viewing,” and submitted a one-page document 12 with a one-page attachment that appears to be related to negotiating a settlement. Neither 13 of these submissions have been filed because they either relate to settlement, a matter 14 typically kept confidential, or as to Plaintiff’s Motion, he has improperly requested to file 15 it “Not for the A.G. viewing.” 16 a) Motion Not for A.G. Viewing 17 Plaintiff’s Motion “Not for the A.G. viewing” appears to be an attempt to obtain a 18 Court order to require production of two documents, a legal mail log and some type of 19 radiology images. However, as to the mail log, he indicates that he did receive a response, 20 it was just blank. And, as to the radiology images, which appear to be some portion of 21 Plaintiff’s own medical records, the Court cannot determine what exactly he requested and 22 from who, how he requested it, or why they did not provide it. 23 As to the attempt to prevent Defendant from being apprised of this filing, that request 24 is DENIED. Although Plaintiff does state “under seal” on this submission, he has not 25 identified any basis for filing it under seal and it appears he is simply attempting to 26 27 28 1 communicate with the Court ex parte regarding discovery. Ex parte communication is 2 generally not permitted except for settlement communications and even then, as noted 3 below, only when initiated by the Court. Additionally, the parties are required to attempt 4 to resolve any discovery disputes before raising them with the Court, and it does not appear 5 that was done here. (ECF 63 4.) The Court recognizes, given Plaintiff’s attempt to hide ⁋ 6 this filing from Defendant, that it is unlikely Plaintiff issued these discovery requests to 7 Defendant. However, Plaintiff is not permitted to pursue Court orders related to compelling 8 discovery without notifying Defendant. This submission shall be filed in the case docket. 9 Substantively, the Court cannot compel anyone to do anything based on this filing. 10 As to the mail logs, it is unclear who Plaintiff sought the mail logs from and how. 11 Additionally, if the mail logs Plaintiff received were blank, it is unclear if they were blank 12 because there was nothing logged on them or for some other legitimate reason. Regardless, 13 there is insufficient information provided for the Court to issue any order compelling a 14 different response. As to the imaging, it is also unclear who Plaintiff requested this 15 information from and whether he did it properly. The Court suspects that Plaintiff should 16 be able to obtain his own medical records, however, the Court is not going to order vaguely 17 identified medical records produced when it is not even clear who and how Plaintiff 18 requested them himself. Accordingly, Plaintiff’s Motion to Compel is DENIED. 19 b) Settlement Communication 20 As indicated in the Court’s Order setting an Early Neutral Evaluation Conference 21 in this case and in scheduling the Mandatory Settlement Conference, there are times 22 when the Court will seek settlements statements from the parties regarding their 23 settlement positions. As also indicated in those orders, the Court treats those 24 25 26 4 The Court also notes that while there is a page sufficient for the Court to determine it 27 has something to do with radiology images, there is nothing in this filing that would appear to disclose any confidential medical information that would need to be sealed or 28 1 confidentially and does not disclose those positions to the opposing party without 2 permission from the party that submitted the statement. Accordingly, a communication to 3 the Court regarding settlement would generally not be docketed. As such this submission 4 has not been because it discusses settlement. 5 However, any future communications to the Court related to settlement should be 6 captioned “Confidential Settlement Statement” or “Confidential Settlement 7 Communication” to avoid having the submission docketed and to ensure that submissions 8 that are not related to settlement are docketed.5 This one-page document appears to be 9 primarily related to settlement. However, going forward, any submission that Plaintiff 10 hopes to keep confidential based on settlement should be appropriately designated that 11 way. Additionally, settlement communications should generally only be submitted when 12 requested by the Court. To the extent the parties seek assistance from the Court in 13 settlement or want to request an additional settlement conference in advance of the MSC 14 already scheduled, they should meet and confer and jointly make that request. 15 C. Amendment of the Scheduling Order 16 Defendant has filed an Ex Parte Application to Amend the Scheduling Order and a 17 Status Report requesting a 60-day extension of the time to complete fact discovery and 18 that the dates following also be extended 60 days. (ECF 68, 72.) Defendant initially 19 sought to modify the Scheduling Order to allow the parties to wait to complete discovery 20 until resolution of a Motion to Amend that Plaintiff had filed. (ECF 68.) Defendant 21 argued the pleadings should be settled prior to completing fact discovery. (ECF 68.) 22 Plaintiff has now withdrawn his Motion to Amend and Defendant seeks sufficient 23 additional time to complete fact discovery, including Plaintiff’s deposition, on the now- 24 settled version of Plaintiff’s complaint. (ECF 72.) Defendant notes that 15-days written 25 notice is required prior to Plaintiff’s deposition. (ECF 72.) 26 27 5 Although there are references within the one-page document to Plaintiff’s pleading, it 28 l The Court finds an extension of the time to complete fact discovery is warranted, 2 || particularly given the time needed to notice and arrange for Plaintiffs deposition. 3 || However, 60 days is not justified at this time.° Accordingly, the deadline to complete fact 4 discovery 1s extended to January 30, 2023. 5 Given Defendant’s request only generally sought to extend all deadlines 60 days 6 || without specifically addressing the need to extend expert discovery deadlines, the Court 7 || only continues those deadlines as follows: designate experts by February 6, 2023 with 8 ||rebuttal expert designations by February 17, 2023; Rule 26(a)(2)(B) and (C) disclosures 9 March 10, 2023 with parties to supplement disclosures under Rule 26(a)(2)(D) by 10 || March 22, 2023. The remaining deadlines set in the Scheduling Order are not modified. 11 CONCLUSION 12 Plaintiff's Motion for Appointment of Counsel is DENIED. (ECF 65.) Plaintiff's 13 ||request for sanctions or to file for sanctions is DENIED. (ECF 52.) Plaintiff’'s Motion to 14 || Compel is DENIED and shall be filed by the Clerk. Defendant’s requests to amend the 15 Scheduling Order are GRANTED in part as set forth above. 16 IT IS SO ORDERED. 17 Dated: December 21, 2022 D / / 18 on. Bernard G. Skomal 19 United States Magistrate Judge 20 21 22 23 24 || 26 there are delays beyond the control of Defendant and Plaintiff in scheduling and 27 || conducting Plaintiff's deposition, the parties may request an extension for purposes of the 28 deposition. However, any such request should include the date the deposition is scheduled to go forward.