Moore v. Duran

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MERRICK MOORE, Case No.: 3:23-CV-0194-GPC-DDL CDCR #H-82249, 12 ORDER APPOINTING PRO BONO Plaintiff, 13 COUNSEL PURSUANT TO vs. 28 U.S.C. § 1915(e)(1) AND 14 S.D. Cal. Gen. Order 596 J.J. DURAN, et al., 15 Defendants. 16 17 18 Plaintiff Merrick Moore, a prisoner proceeding without counsel, filed this civil 19 action pursuant to the Civil Rights Act, 42 U.S.C. § 1983, in February 2023. ECF No. 1. 20 Moore alleges Richard J. Donovan Correctional Facility officials Duran, Manquero,1 21 Valencia, Smith, Gonzalez, Bracamonte, Covello, Searless, Anderson, Cortes, Davis, and 22 Castillo violated his Eighth Amendment rights on March 1, 2018, by using excessive 23 force, sexually assaulting, and failing to protect him after he appeared at an Institutional 24 Classification Committee Hearing, and was authorized for administrative segregation and 25 transfer to a “Level IV SNY (sensitive needs yard).” Id. at 5‒8. 26

27 1 Because Manquero has never been served, the Court has ordered Plaintiff to show cause 28 1 PROCEDURAL HISTORY 2 On September 20, 2024, the Court denied Defendants’ Motion for Summary 3 Judgment pursuant to Fed. R. Civ. P. 56, finding Plaintiff’s excessive force claims are not 4 barred by Heck v. Humphrey, 512 U.S. 477 (1994), and genuine disputes of material fact 5 exist requiring trial. ECF No. 77. After the Court learned that Plaintiff had been 6 transferred to another prison while Defendants’ Motion was pending, on September 26, 7 2024, it directed the Clerk to update Plaintiff’s address, provide him with copies of the 8 Court’s latest Orders. The Court also notified Plaintiff of its intent to refer his case for 9 potential pro bono representation pursuant to its Pro Bono Plan for the Representation of 10 Pro Se Litigants in Civil Cases, as adopted by S.D. Cal. General Order 596. ECF No. 78. 11 APPOINTMENT OF COUNSEL 12 There is no right to counsel in a civil action, but a court may under “exceptional 13 circumstances” exercise its discretion and “request an attorney to represent any person 14 unable to afford counsel.” 28 U.S.C. § 1915(e)(1); Palmer v. Valdez, 560 F.3d 965, 970 15 (9th Cir. 2009). The court must consider both “‘the likelihood of success on the merits as 16 well as the ability of the [Plaintiff] to articulate his claims pro se in light of the 17 complexity of the legal issues involved.’” Id. (quoting Weygandt v. Look, 718 F.2d 952, 18 954 (9th Cir. 1983)). 19 Plaintiff’s prior motions requesting the appointment of counsel were denied 20 because like most litigants, he failed to meet the exceptional circumstances requirement 21 at the pre-discovery and pre-summary judgment stages of his case. ECF Nos. 34, 64. See 22 also Hearn v. RJD Warden, No. 22-CV-255-TWR-DDL, 2022 WL 17407996, at *2 (S.D. 23 Cal. Dec. 2, 2022) (when a pro se plaintiff’s allegations “remain unproven … [a]t th[e] 24 early stage of the proceedings, there is no basis upon which the Court can predict [his] 25 success at trial.”); Campos v. K.U.S.I. News Media, No. 3:19-cv-01455-BAS-AGS, 2019 26 WL 4674290, at *2 (S.D. Cal. Sept. 24, 2019) (denying prisoner’s motion to appoint 27 counsel where it “[was] simply too soon to tell whether he will be likely to succeed on 28 the merits of any potential constitutional claim”).) 1 And while Plaintiff has since demonstrated both an ability to articulate his claims 2 and to survive summary judgment while proceeding without the assistance of trained 3 counsel, the likelihood of his success on the merits increased as a result of the Court’s 4 September 20, 2024 summary judgment ruling. Cf. Garcia v. Smith, 2012 WL 2499003, 5 at *3 (S.D. Cal. 2012) (finding it “too early to determine the likelihood of success on the 6 merits” when it was “not certain whether plaintiff’s complaint would survive 7 [defendant’s pending motion for] summary judgment.”). 8 For these reasons, and in light of the impending trial, the Court has elected to 9 exercise its discretion pursuant to 28 U.S.C. § 1915(e)(1) and its Plan for the 10 Representation of Pro Se Litigants in Civil Cases as adopted by S.D. Cal. General Order 11 596. The Pro Bono Plan specifically provides for appointment of pro bono counsel “as a 12 matter of course for purposes of trial in each prisoner civil rights case where summary 13 judgment has been denied.” See S.D. Cal. Gen. Order 596. Therefore, because the ends 14 of justice would be served by the appointment of pro bono counsel under the 15 circumstances, and an available Pro Bono Panel volunteer attorney has since graciously 16 agreed to represent Plaintiff pro bono during the course of all further proceedings held 17 before this Court in this case, the Court sua sponte reconsiders Plaintiff’s previous 18 motions requesting the appointment of counsel and grants those requests pursuant to S.D. 19 Cal. Gen. Order 596. 20 CONCLUSION 21 For the reasons discussed, the Court APPOINTS Martin G. Molina, SBN 176934, 22 of the Law Office of Martin G. Molina, 185 W F St Ste 100, San Diego, California, 23 92101-6025, as Pro Bono Counsel for Plaintiff Merrick Moore. 24 Pursuant to S.D. Cal. CivLR 83.3.f.2, Pro Bono Counsel must file, within twenty- 25 one (21) days of this Order, if possible, a formal written Notice of Substitution of 26 Attorney signed by both Plaintiff and his newly appointed counsel. This Notice of 27 Substitution will be considered approved by the Court upon filing, and Pro Bono Counsel 28 will thereafter be considered attorney of record for Plaintiff for all purposes during | || further proceedings before this Court, in this matter only, and at the Court’s specific 2 request. See S.D. Cal. CivLR 83.3.f.1, 2.7 3 The Court further DIRECTS the Clerk of the Court to forward Mr. Molina a copy 4 this Order upon entry in CM/ECF to mmolinaesq@outlook.com and to also serve him 5 || with a copy via U.S. Mail at the address listed above upon filing. See S.D. Cal. CivLR 6 || 83.3.f.2. 7 IT IS SO ORDERED. 8 9 10 || Dated: October 7, 2024 7] / ix Hon. Gonzalo P. Curiel 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 ||? Plaintiff is cautioned that the Court’s Pro Bono Panel is a precious and limited resource. The fact that the Court has found this case suitable for appointment at this stage of the proceedings, and has been able to locate an available volunteer attorney does not entitle 25 to the appointment of counsel in this or any other case. Nor does it permit him an attorney of his choosing, or guarantee any subsequent Pro Bono Panel referral or appointment. See Hedges vy. Resolution Trust Corp (In re Hedges), 32 F.3d 1360, 1363 27 Cir. 1994) (“[T]here is no absolute right to counsel in civil proceedings.”) (citation 58 omitted); United States ex rel Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (noting that the appointment of counsel in a civil case “is a privilege and not a right.”’).