(PC) Landreth v. Lehil

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON MICHAEL LANDRETH, No. 2:20-CV-0472-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 BHUPINDER LEHIL, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion, ECF No. 113, seeking an order 19 “to exclude affirmative defenses and evidence related to said defense” and appointing counsel. 20 Plaintiff challenges two specific affirmative defenses raised in Defendant 21 Ottenbacher’s answer filed on April 7, 2023, ECF No. 109. Specifically, Plaintiff challenges 22 affirmative defense no. 3, in which Defendant Ottenbacher claims that Plaintiff’s own conduct 23 contributed to his damages, and affirmative defense no. 4, in which Defendant Ottenbacher 24 claims that Plaintiff failed to mitigate his damages. According to Plaintiff, the evidence 25 necessary to establish these defenses, such as evidence of his mental status or failure to comply 26 with medical directives, would be more prejudicial than probative and would cause humiliation 27 and embarrassment. Plaintiff also states that, should be Court deny this motion, it should appoint 28 counsel. 1 As Defendants note in their opposition to Plaintiff’s challenge to affirmative 2 defenses, the defenses of comparative fault and failure to mitigate are recognized as valid 3 defenses in § 1983 actions. See e.g. Meyers v. City of Cincinatti, 14 F.3d 1115, 1119 (6th Cir. 4 1994). To the extent Plaintiff argues that evidence should be excluded, the Court agrees with 5 Defendants that the motion is essentially a premature motion in limine better suited for 6 consideration at a later stage of these proceedings prior to trial. 7 Turning to Plaintiff’s request for the appointment of counsel, the United States 8 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 9 prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 10 certain exceptional circumstances, the court may request the voluntary assistance of counsel 11 pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 12 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional 13 circumstances” requires an evaluation of both the likelihood of success on the merits and the 14 ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal 15 issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be 16 viewed together before reaching a decision. See id. In Terrell, the Ninth Circuit concluded the 17 district court did not abuse its discretion with respect to appointment of counsel because:

18 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 19 of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. 20 Id. at 1017. 21 22 In the present case, the Court does not at this time find the required exceptional 23 circumstances. First, this case is still in the early stages of discovery and Plaintiff has not shown 24 that he has any particular likelihood of success on the merits. Second, the issues presented in this 25 case are neither legally nor factually complex, notwithstanding Plaintiff’s contention that he is 26 unable to present the issue of potential exclusion of evidence prior to trial without the assistance 27 of counsel. In this regard, and third, the Court finds that Plaintiff’s filings in this case, including 28 the currently pending motion, demonstrate that Plaintiff has a sufficient ability to articulate his 1 | claims and arguments on his own. 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 1. To the extent Plaintiff seeks exclusion of evidence related to affirmative 4 | defenses, Plaintiff's motion, ECF No. 113, is DENIED without prejudice to renewal prior to trial 5 || following resolution of dispositive motions. 6 2. To the extent Plaintiff seeks the appointment of counsel, Plaintiff's motion, 7 || ECF No. 113, is DENIED. 8 9 | Dated: August 22, 2023 Ss..c0_, 10 DENNIS M. COTA 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28