(PC) Kirkland v. Smith

Opinion

TREVON R. KIRKLAND, Case No.: 1:23-cv-00602-JLT-CDB Plaintiff, ORDER DISCHARGING ORDER TO SHOW CAUSE v. (Doc. 48) D. SMITH, et al.,

Defendants. ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL (Doc. 49)

ORDER DENYING PLAINTIFF’S REQUEST RE DEFENDANTS’ ANSWER (Doc. 49) ORDER EXTENDING DEADLINE WITHIN WHICH TO LOCATE DEFENDANT SMITH

Plaintiff Trevon R. Kirkland is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On June 17, 2025, this Court issued its Order to Show Cause (OSC) Why Defendant D. Smith Should not be Dismissed from this Action for Plaintiff’s Failure to Provide Sufficient why Defendant Smith should not be dismissed from this action. Plaintiff may do so by providing additional information concerning Defendant Smith’s current location.” (Id. at 5.) On June 20, 2025, Plaintiff filed a document titled “Plaintiffs’ Response; Motion for Appointment of Counsel.” (Doc. 49.) Plaintiff’s response to the OSC concerns three issues: his request for the appointment of counsel, Defendants’ answer, and service of process of Defendant Don E. Smith. A. The Motion to Appoint Counsel Applicable Legal Standards Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Given that the Court has no reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in extraordinary cases. In determining whether “exceptional circumstances exist, a district court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & citations omitted). Analysis First, the Court must evaluate the likelihood of Plaintiff’s success on the merits of his claims. Rand, 113 F.3d at 1525. The Court finds that although Plaintiff’s complaint was screened by the Court and Defendants Bucato and Moore have filed an answer to the complaint, a likelihood of success on the merits determination is premature as discovery has not yet commenced. See, e.g., Porter v. Rivas, No. 1:23-cv-00105- ADA-CDB (PC), 2023 WL 4765492, same as that required at screening; at screening, the Court is tasked with determining whether a plaintiff has sufficiently and plausibly alleged a cause of action or claim entitling the plaintiff to relief. The merits of the allegations are not tested, for the Court is to consider factual allegations to be true for purposes of screening”). Next, the Court must also evaluate Plaintiff’s ability to articulate his claims pro se considering the complexity of the legal issues involved. Rand, 113 F.3d at 1525. The Court finds Eighth Amendment excessive force and threat to safety claims and Fourteenth Amendment due process violations are not complex. See Maldanado v. Merritt, No. 1:23-cv-00482-JLT-SKO PC, 2023 WL 6751114, at *3 (E.D. Cal. Oct. 12, 2023) (“Eighth Amendment deliberate indifference to serious medical needs claims are not complex”); Andre-Gollihar v. County of San Joaquin, No. 2:09-cv-03313 MCE KJN PS, 2010 WL 2925358, at *2 (E.D. Cal. July 26, 2010) (“plaintiff's claims of excessive force and wrongful death are not complex”); Arroy v. Jeffries, No. 23-1129, 2023 WL 3010154, at *4 (C.D. Ill. Apr. 19, 2023) (denying motion for appointment of counsel and finding “Plaintiff’s failure to protect claim is not complex”). Further, the Court notes that Plaintiff's filings have been responsive and reflect Plaintiff is logical and articulate. (See, e.g., Docs. 1, 8, 10-14, 16, 26, 30.) Incarceration is not an exceptional circumstance warranting the appointment of counsel. See Suarez v. Clark, No. 1:22-cv-00160-JLT-SAB (PC), 2024 WL 477982, at *1 (E.D. Cal. Jan. 25, 2024) (“the Court has ‘repeatedly’ held incarceration’s challenges on litigation do not constitute an exceptional circumstance. [] If Plaintiff’s incarceration was an exceptional circumstance, any prisoner would be entitled to counsel”). As concerns Plaintiff’s lack of legal knowledge and/or limited law library access, those too are not exceptional circumstances; rather, they are circumstances common to nearly all pro se prisoner litigants. See, e.g., Escamilla v. Oboyle, No. 2:22-cv-2038 KJM AC P, 2023 WL 2918028, at *1 (E.D. Cal. Apr. 12, 2023) (“Circumstances common to most prisoners, such as a lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel”); Faultry v. Saechao, No. 2:18- Ramm, No. 2:16-cv-0694 JAM AC P, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018) (“The law is clear: neither plaintiff's indigence, nor his lack of education, nor his lack of legal expertise warrant the appointment of counsel”). The fact an attorney would be better prepared to litigate and try this action, does not amount to an exceptional circumstance warranting the appointment of counsel. See Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner “may well have fared better-particularly in the realm of discovery and the securing of expert testimony”). There is little doubt most pro se litigants “find it difficult to articulate [their] claims,” and would be better served with the assistance of counsel. Wilborn, 789 F.2d at 1331. For this reason, in the absence of counsel, federal courts employ procedures which are highly protective of a pro se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim–Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, where a pro se litigant can “articulate his claims” in light of the relative complexity of the matter, the “exceptional circumstances” which might require the appointment of counsel do not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Plaintiff vaguely asserts “continuous retailitory [sic] methods by correctional staff,” noting the “interferences cause I/M to not have the ability to execute such legal procedures on his own.” (Doc. 49 at 1.) This action does not involve any retaliation claims. To the extent Plaintiff seeks to assert First Amendment retaliation claims, he must file a new action. Furthermore, even accepting Plaintiff’s vague assertions as true, exceptional circumstances do not exist. See, e.g., Palmer, 560 F.3d at 970 (finding that plaintiff failed to demonstrate exceptional circumstances despite his contentions that “the pain from his surgery limited his ability to prepare for trial, and prison officials had denied him access to his legal documents, thereby limiting his ability to (E.D. Cal. Jan. 24, 2025) (denying counsel where plaintiff asserted he was “being retaliated against”); Marsala v. Diaz, No. 1:22-cv-00843-BAM (PC), 2022 WL 2818737, at **1 (E.D. Cal. July 19, 2022) (denying counsel where plaintiff asserted he had “been harassed, ridiculed, and retaliated against when interacting with staff”); Allen v. Currier, No. 20-CV-1389 JLS (LR), 2023 WL 2087963, at *3 (S.D. Cal. Feb. 17, 2023) (denying appointment of counsel where plaintiff alleged his mail was delayed or missing and obstructing his access to the court). Finally, the Court notes Plaintiff paid the $402 filing fee for this action (see Docket Entry No. dated 6/5/2023 [“receipt number 1000000491”]) and Plaintiff is not proceeding in forma pauperis in this action. The Court is not aware of any authority that would allow the appointment of counsel for a litigant in a civil action who is not proceeding in forma pauperis. In sum, the test is not whether Plaintiff would benefit from the appointment of counsel; the test is whether exceptional circumstances exist. Here, no exceptional circumstances exist warranting the appointment of counsel. Thus, Plaintiff’s motion will be denied. B. Defendants’ Answer Plaintiff “moves to deny defendants Answer to this case based on False or wrong documentation to the courts. There is no substantial evidence supporting their cause, and does not shine light on truthfulness.” (Doc. 49 at 2.) Further, Plaintiff asserts “defendants failed to present any REAL authentic information based on what transpired and did NOT respond in words correctly.” (Id. at 3.) A motion to strike pursuant to the Federal Rules of Civil Procedure allows a court to strike “from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Whittlestone, Inc. v. Handi-Craft, Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)), rev'd on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 (1994); see Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Bureerong v. Uvawas, 922 F. Supp. 1450, 1478 (C.D. Cal. 1996). A motion to strike should therefore not be granted unless it is absolutely clear that the matter to be stricken could have no possible bearing on the litigation. Lilley v. Charren, 936 F. Supp. 708, 713 (N.D. Cal. 1996). Defendant Bucato and Moore’s answer to Plaintiff’s complaint was filed May 22, 2025. (Doc. 45.) It denies Plaintiff’s allegations (id. at 2-3) and asserts affirmative defenses (id. at 3-5). See Fed. R. Civ. P. 8(b) & (c). Here, a review of the answer does not reveal insufficient defenses or “redundant, immaterial, impertinent, or scandalous matter” or any other “spurious issues.” Fed. R. Civ. P. 12(f); Whittlestone, Inc., 618 F.3d at 973. Nor is it clear that Defendants’ answer has no bearing on the litigation. Lilley, 936 F. Supp. at 713. The fact Plaintiff asserts the answer is “false” or “wrong” does not change this outcome. And to the extent Plaintiff contends the answer is not supported by “substantial evidence,” such evidence is not required at this stage of the proceedings. Plaintiff’s motion will be denied. Bureerong, 922 F, Supp. at 1478. Plaintiff is advised that the discovery process will involve the sharing of evidence between the parties. See Fed. R. Civ. P. 26(b); see also, e.g., Fed. R. Civ. P. 30, 33, 34, 36. Plaintiff is encouraged to review section “V. DISCOVERY” in this Court’s First Informational Order in Prisoner/Civil Detainee Civil Rights Case issued April 19, 2023. (See Doc. 4 at 4-5.) The Court will issue a discovery and scheduling order in due course. C. Defendant Smith and Service of Process Plaintiff’s response states, in part: “It is in the best interest to find and or locate defendant Don Smith for his actions fell beyond a reasonable doubt and holds significant purpose in this (pro se) lawsuit as of now.” (Doc. 49 at 2.) Plaintiff asserts Defendant Smith “does not work for (CDCR) any longer due to misconduct or other malicious activity.” (Id.) Plaintiff states that the California Department of Corrections and Rehabilitation (CDCR) asserts “false allegations to cover up the malicious attack of their own, makes defendants’ unreliable within court proceedings to move forward with the articulated truthfulness in good faith.” (Id. at 2-3.) Here, the CDCR has indicated it could not accept service on behalf of Defendant Smith because Smith was “[n]o longer employed by CDCR and cannot be located.” (Doc. 40.) There is employment was terminated “due to misconduct or other malicious activity.” The record establishes only that Defendant Smith is no longer employed by CDCR and that his location is unknown. Further, the United States Marshals Service has indicated its attempts to locate or gather information to find Defendant Smith were unsuccessful because a “forwarding address or contact number” could not “be found/obtained for Smith.” (Doc. 47.) As Plaintiff was recently advised, it is his obligation to locate Defendant Smith so that service can be effected by the United States Marshals Service. (See Doc. 48 at 3-5.) Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994), Plaintiff will be afforded additional time within which to provide the Court with sufficient information to locate Defendant Smith so that the United States Marshal can attempt service of process of Smith. Plaintiff is cautioned that his failure to effectuate service of process of Defendant Smith or to provide the Court with sufficient information to locate Defendant Smith will result in Defendant Smith’s dismissal, without prejudice, from this action. See Fed. R. Civ. P. 4(m). Based on the foregoing, the Court HEREBY ORDERS that: 1. The order to show cause issued June 17, 2025 (Doc. 48) is DISCHARGED; 2. Plaintiff motion to appoint counsel (Doc. 49) is DENIED; 3. Plaintiff's motion or request to “deny” Defendants’ answer (Doc. 49) is DENIED; and 4. Plaintiff's deadline to provide the Court with sufficient information to locate Defendant Smith is EXTENDED to no later than August 18, 2025. ITIS ORDERED. | Dated: _ June 23, 2025 | Word bo UNITED STATES MAGISTRATE JUDGE