Ortega v. Santa Clara County Jail

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CARLOS A. ORTEGA, Case No. 19-cv-00319-HSG

8 Plaintiff, ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL 9 v. Re: Dkt. No. 53 10 A. FLORES, et al., 11 Defendants.

12 13 Plaintiff, an insanity acquittee at Napa State Hospital and proceeding pro se, filed this civil 14 rights action under 42 U.S.C. § 1983 alleging that, on or about December 12, 2012, Santa Clara 15 County Jail officers used excessive force on him in violation of the Eighth Amendment. See Dkt. 16 Nos. 1, 7. The Court has ordered briefing on the limited issue of whether Plaintiff’s action is time- 17 barred. Dkt. No. 47. 18 Plaintiff requests that the Court appoint him counsel for the following reasons: 19 “compl[i]cations with mental health issues;” the possibility that medical professionals will be 20 called as expert witnesses by either party to address Plaintiff’s mental health issues; Plaintiff has 21 to complete 18 hours of treatment, training, or stress relief activities a week in order to be ready 22 for his release from incarceration, which leaves him little time to research or litigate this action; 23 COVID-19 lockdowns make it difficult to research caselaw and obtain photocopies; his status as a 24 pro se litigant makes it difficult to conduct discovery, provide initial disclosures, draft dispositive 25 motions, respond to defendants, present expert testimony, and determine witness credibility; 26 Plaintiff has previously litigated lawsuits and lost; the legal issues are complicated; and because of 27 factors such as Plaintiff’s educational background, literacy level, and prior work experience. Dkt. 1 “Generally, a person has no right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 2 |} 965, 970 (9th Cir. 2009). “However, a court may under ‘exceptional circumstances’ appoint 3 counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Id. (citing Agyeman v. 4 Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom. Gerber v. 5 || Agyeman, 545 U.S. 1128 (2005)). A finding of “exceptional circumstances” requires an 6 || evaluation of the likelihood of the plaintiffs success on the merits and of the plaintiff's ability to 7 articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman, 8 390 F.3d at 1103. Both factors must be viewed together before reaching a decision on a request 9 for counsel under § 1915. See id. At this initial stage, the likelihood of Plaintiffs success on both 10 || the threshold issue of timeliness and the merits of this action is uncertain; Plaintiff has ably 11 articulated his claims pro se so far despite the difficulties and restrictions he has described;! and 12 || the legal issues do not appear unduly complex. Plaintiff has failed to demonstrate exceptional 5 13 circumstances that would require appointment of counsel. Plaintiffs request for appointment of 14 || counsel is DENIED without prejudice to the Court’s sua sponte appointment of counsel should 3 15 circumstances so require. 16 This order terminates Dkt. No. 53. IT IS SO ORDERED. 18 || Dated: 2/14/2022 19 Alapwrd & Mbt. HAYWOOD S. GILLIAM, JR. 20 United States District Judge 21 22 23 24 25 26 ' The Court is aware that Plaintiff was represented by counsel on appeal. Dkt. No. 44. The Ninth 07 Circuit found that appointment of pro bono counsel in the appeal would benefit its review, but made no finding as to whether this case poses the kind of exceptional circumstances that require 28 appointment of counsel. /d. The Court has reviewed the record and finds that Plaintiff has thus far ably represented himself pro se.