Newton v. Eatmon

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 THEODORE J. NEWTON, Case No.: 21cv15-LAB(KSC)

11 Plaintiff, ORDER RE PLAINTIFF’S MOTION 12 v. FOR APPOINTMENT OF COUNSEL [Doc. No. 8]; 13 OFFICER S. EATMON,

14 Defendant. ORDER RE PLAINTIFF’S MOTION FOR CLARIFICATION [Doc. No. 11.] 15

16 Plaintiff Theodore J. Newton, a prisoner who is housed at the Richard J. Donovan 17 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil 18 rights action pursuant to Section 42, United States Code, Section 1983. Before the Court 19 is plaintiff’s Motion for Appointment of Counsel. [Doc. No. 8.] In this Motion, plaintiff 20 requests that the Court appoint an attorney to help him prosecute this civil action, because 21 he does not “understand much about the law.” [Doc. No. 8, at p. 1.] Also before the 22 Court is plaintiff’s Motion for Clarification, which seeks information about the 23 defendant’s deadline for responding to the Complaint. [Doc. No. 11.] 24 Background 25 In his Complaint, plaintiff claims RJD Correctional Officer S. Eatmon used 26 excessive force against him on August 27, 2018 during a medical appointment and later 27 harassed, threatened, and assaulted him because he filed a CDCR 602 inmate appeal 28 1 reporting the incident. Newton claims he is a senior citizen and an “ADA prisoner with 2 one eye and several more medical issues,” and he contends Eatmon assaulted him “for no 3 apparent reason.” [Doc. No. 1, at pp. 3-4.] 4 Discussion 5 I. Plaintiff’s Motion for Appointment of Counsel. 6 In his Motion, plaintiff requests that the Court appoint counsel in this case, because 7 he does not “understand much about the law.” [Doc. No. 8, at p. 1.] Without 8 appointment of counsel, plaintiff believes he will not be able to “obtain the truth in this 9 matter.” [Doc. No. 8, at p. 1.] 10 An indigent’s right to appointed counsel has been recognized to exist “only where 11 the litigant may lose his physical liberty if he loses the litigation.” Lassiter v. 12 Department of Social Services of Durham County, N. C., 452 U.S. 18, 25 (1981). District 13 Courts generally lack authority to require counsel to represent indigent prisoners in 14 Section 1983 cases. Mallard v. U.S. Dist. Court, 490 U.S. 296, 298 (1989). However, in 15 certain “exceptional circumstances,” the Court may request the voluntary assistance of 16 counsel. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 17 “A finding of exceptional circumstances requires an evaluation of both the 18 likelihood of success on the merits and the ability of the petitioner to articulate his claims 19 pro se in light of the complexity of the legal issues involved.” Terrell, 935 F.2d at 1017 20 (internal citations omitted). “Neither of these factors is dispositive and both must be 21 viewed together before reaching a decision.” Id. (internal citation omitted). 22 Based on the information presented, there is no basis to support a finding of 23 exceptional circumstances in this case. First, the record is not sufficiently developed so 24 that the Court can determine the likelihood of success on the merits. 25 Second, a lack of legal training, standing alone, is not enough to show exceptional 26 circumstances. This and other hardships imposed by plaintiff’s incarceration “are 27 difficulties which any litigant would have in proceeding pro se; they do not indicate 28 exceptional factors.” Wood v. Housewright, 900 F.2d 1332, 1335–1336 (9th Cir. 1990). 1 Third, there is nothing from which the Court could conclude plaintiff lacks the 2 ability to articulate and prosecute his claims pro se even though he lacks legal training. 3 The allegations in the Complaint are clearly stated and they survived initial screening. 4 [Doc. No. 1, at pp. 1-7; Doc. No. 5, at pp. 4-7.] Thus far, plaintiff has shown an ability to 5 effectively articulate his claims and communicate with the Court in this action. 6 Fourth, the allegations in the Complaint are not novel or complex. Plaintiff 7 essentially alleges that Officer Eatmon was deliberately indifferent to his health and 8 safety, used excessive force, and retaliated against him for filing a grievance. [Doc. 9 No. 1, at pp. 1-7.] 10 Finally, pro se litigants are afforded some leniency to compensate for their lack of 11 legal training. “In civil rights cases where the plaintiff appears pro se, the court must 12 construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” 13 Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal citation omitted). This also 14 applies to motions. Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003). 15 Accordingly, plaintiff’s pro se status will be taken into consideration by the Court when 16 his filings are reviewed. 17 II. Plaintiff’s Motion for Clarification. 18 In his Motion for Clarification, plaintiff seeks information about the defendant’s 19 deadline for responding to the Complaint, because he believes defendant Eatmon should 20 have filed a response by May 10, 2021 and may be in default. [Doc. No. 11, at p. 1.] The 21 Court’s official record indicates that a summons was issued on April 7, 2021. [Doc. No. 22 6.] The Court’s official record also indicates that the summons was mailed to RJD by the 23 U.S. Marshal on April 27, 2021. [Doc. No. 9, at p. 1.] The Office of the Attorney 24 General then executed a waiver of service of the summons on May 27, 2021. [Doc. No. 25 9, at p. 2.] The waiver states that defendant must file a response “within 60 days after 26 April 27, 2021.” [Doc. No. 9, at p. 2.] Therefore, the time for the defendant to file a 27 response has not yet expired. 28 / / / l Conclusion 2 Based on the foregoing, IT IS HEREBY ORDERED that plaintiff's Motion for 3 || Appointment of Counsel is DENIED without prejudice. [Doc. No. 8.] Plaintiff's Motion 4 || for Clarification is GRANTED as the Court provided plaintiff with the information he 5 ||requested. [Doc. No. 11.] 6 IT IS SO ORDERED. 7 Dated: June 11, 2021 Me Uf; 8 WUCGA —= 9 Hori. Karen S. Crawford United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28