Newton v. Eatmon

Opinion

FILED 1 ee So 2 | 20 | Lene] 4 BY CA DEPUTY | 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || THEODORE J. NEWTON, Case No.: 19cev511-LAB(KSC) Plaintit, ORDER DENYING PLAINTIFF'S 13 |] V. MOTION FOR APPOINTMENT OF 14 fearon COUNSEL; ORDER DENYING 15 Defendant. CLARIFICATION AS MOOT 16 [Doc. Nos. 27, 29.] 17 18 Plaintiff Theodore J. Newton, a state prisoner proceeding pro se and in forma 19 || pauperis, filed this action pursuant to Title 42, United States Code, Section 1983, 20 || alleging that a correctional officer at the Richard J. Donovan Correctional Facility used 21 |lexcessive force against him. [Doc. No. 1.] Before the Court are plaintiff's second Motion 22 || for Appointment of Counsel [Doc. No. 27] and plaintiff's Motion for Clarification [Doc. 23 29]. In an Order filed on August 13, 2019, the Court denied plaintiff's prior Motion 24 || for Appointment of Counsel. [Doc. No. 19.] For the reasons outlined more fully below, 25 Court finds that plaintiff's Motion for Appointment of Counsel and Motion for 26 || Clarification must be DENIED. 27 Motion for Appointment of Counsel. In his Motion for Appointment of Counsel, 28 || plaintiff requests that the Court appoint counsel, because he is “clearly in doubt” about

1 entire case. [Doc. No. 27.] In his prior Motion for Appointment of Counsel, plaintiff 2 ||requested that the Court appoint counsel for several reasons. First, plaintiff claimed that 3 ||“imprisonment [would] greatly limit his ability to litigate.” [Doc. No. ll, ap. 1.] 4 || Second, plaintiff argued that the issues in this case “are complex and will require 5 || significant research and investigation,” and he has only “limited access to the law library 6 || and limited knowledge of the law.” [/d.] Third, plaintiff claimed that “a trial in this case 7 {| [would] likely involve conflicting testimony, and counsel would better enable plaintiff to 8 || present evidence and cross examine witnesses.” [/d.] Fourth, plaintiff represented that he 9 unable to afford counsel. [Jd] 10 As the Court explained in the prior Order of August 13, 2019, an indigent’s right to 11 ||appointed counsel has been recognized to exist “only where the litigant may lose his 12 |} physical liberty if he loses the litigation.” Lassiter v. Dep’t of Soc. Servs. of Durham Cty., 13 ||N. C., 452 U.S. 18, 25 (1981). District Courts generally lack authority to require counsel 14 represent indigent prisoners in Section 1983 cases. Mallard v. U.S. Dist. Court for S. 15 || Dist. of Iowa, 490 U.S. 296, 298-309 (1989). However, in certain “exceptional 16 || circumstances,” the Court may request the voluntary assistance of counsel. Terrell v. 17 || Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 18 “A finding of exceptional circumstances requires an evaluation of both the 19 || likelihood of success on the merits and the ability of the petitioner to articulate his claims 20 || pro se in light of the complexity of the legal issues involved.” Terrell, 935 F.2d at 1017 21 || (internal citations omitted). “Neither of these factors is dispositive and both must be 22 || viewed together before reaching a decision.” Jd. (internal citation omitted). 23 Here, there is currently no basis to support a finding of exceptional circumstances. 24 || First, the record is not sufficiently developed, so the Court cannot determine the likelihood 25 || of success on the merits. Second, there is nothing from which the Court could conclude 26 ||plaintiff lacks the ability to articulate and prosecute his claims pro se. Plaintiff has 27 ||demonstrated a knowledge of the essential facts supporting his claim, which appear 28 relatively straightforward and uncomplicated. In addition to his Complaint, which survived

I initial screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A, plaintiff opposed 2 || defendants’ Motion for Summary Judgment and filed Obj ections to this Court’s Report and 3 ||Recommendation Re Defendants’ Motion for Summary Judgment. [Doc. No. 6, at pp. 4-7; 4 No. 15; Doc. No. 20; Doc. No. 30.] Therefore, plaintiff has clearly shown an ability 5 ||to effectively articulate his claims and communicate with the Court in this action. 6 Third, a pro se prisoner’s inability to afford an attorney, standing alone, is not 7 |jenough to show exceptional circumstances. This and other hardships imposed by 8 || incarceration “are difficulties which any litigant would have in proceeding pro se; they do 9 indicate exceptional factors.” Wood v. Housewright, 900 F.2d 1332, 1335-1336 (9th 10 || Cir. 1990). 11 Finally, pro se litigants are afforded some leniency to compensate for their lack of 12 |/legal training. “In civil rights cases where the plaintiff appears pro se, the court must 13 ||construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” Jackson 14 Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal citation omitted). This also applies to 15 ||motions. Bernhardt v. Los Angeles Cty., 339 F.3d 920, 925 (9th Cir. 2003). Accordingly, 16 || plaintiff's pro se status will be taken into consideration by the Court when his filings are 17 reviewed. 18 For these reasons, the Court finds that plaintiff’s second Motion for Appointment of 19 Counsel must be DENIED. [Doc. No. 27.] 20 Motion for Clarification. In his Motion for Clarification, plaintiff requests that the 21 ||Court advise him of the status of defendants’ Motion for Summary Judgment and his 22 {|Opposition thereto. [Doc. No. 29.] Shortly before the Court received this Motion from 23 plaintiff, a Report and Recommendation Re Defendants’ Motion for Summary Judgment. 24 |) was filed in this case. [Doc. No. 25.] The record indicates plaintiff received a copy of this 25 ||Report and Recommendation, because he recently filed Objections thereto. Plaintiff’s 26 |j Objections to the Report and Recommendation clearly indicate plaintiff is now aware of 27 status of defendants’ Motion for Summary Judgment. [Doc. No. 30.] In due course, 28

1 || the District Court will rule on the Report and Recommendations and plaintiff's Objections 2 || thereto. Accordingly, plaintiff's Motion for Clarification is moot. 3 Conclusion 4 For the foregoing reasons, the Court finds that plaintiff has not shown there are 5 “exceptional circumstances” for the appointment of counsel in the case. Accordingly, IT 6 HEREBY ORDERED that plaintiff's Motion for Appointment of Counsel is DENIED. 7 || [Doc. No. 27.] Plaintiff’s Motion for Clarification is DENIED as moot, because the record 8 || indicates plaintiff is aware of the status of defendants’ Motion for Summary Judgment and 9 Opposition thereto. [Doc. No. 29.] 10 IT IS SO ORDERED. . 11 |/Dated: November Z9_, 2019 lig Hon. RareiyS-'Crawford United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 . 24 25 26 27 28