Quichocho v. Carbullido, DOC

Opinion

I, . -

:• IN THE SUPERIOR COURT Of GUAM

RICHARD R. QUICHOCHO, CIVIL CASE NO. CV0429-21

Plaintiff, V.

DECISION AND ORDER DENYING JOSEPH S. CARBULLIDO, Acting MOTION FOR APPOINTMENT Of Director of the Department of Corrections, COUNSEL AND SETTING A in his Official Capacity, et at., HEARING Defendants.

This matter came before the Honorable Dana A. Gutierrez on August 11, 2021 for a

hearing on Plaintiff Richard R. Quichocho’s (“Plaintiff’) Motion for Appointment of Counsel.

Plaintiff was present in person. Attorney Joseph B. McDonald representing Defendant Samantha

J. Brennan (“Defendant Brennan”) was present via Zoom. Defendant Joseph S. Carbullido was

present via telephone. Upon a review of the applicable law, the arguments presented by the

parties, and in the interest of judicial economy, the Court hereby DENIES Plaintiff’s Motion for

Appointment of Counsel (“Motion”).

BACKGROUND

Plaintiff is an inmate on Guam at the Department of Corrections (“DOC”). This action

arises out of Plaintiff’s assertion that the named Defendants have violated Plaintiff’s Eighth

Amendment, Due Process, and Equal Protection rights by denying needed medical care to . DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING A HEARiNG CV0429-21; Quichocho v. Carbutlido, et at.

Plaintiff and by providing inadequate medical care. See Compi., at 18-22 (Sept. 27, 2021).’

Plaintiff was diagnosed as a diabetic by a former physician at the Department of Corrections

(“DOC”). Id. at 3. The incidents giving rise to Plaintiff’s Complaint began in or around May of

2019 when the attending DOC physician, Dr. Florencio Lizama, recommended a change in

Defendant’s diabetes prescription. Id. at 4.

Plaintiff alleges that the change in prescription began to cause unpleasant side effects

including severe stomach aches and a recurring severe earache. Ii at 5. Plaintiff’s Complaint

details a series of events following his report of these side effects to the attending DOC

physician, Defendant Dr. Mark Anderson (“Defendant Anderson”). Id. at 2-18. The events

include allegations that DOC staff failed to respond to numerous “Remedy Requests” and his

“1st Grievance Complaint,” and that DOC staff, on multiple occasions, have acted with

deliberate indifference toward Plaintiff’s serious need for medical care. Id. 18-24. Plaintiff

further alleges that Defendants Anderson, Brennan, and Antone Aguon retaliated against

Plaintiff after being informed that he intended to pursue his legal rights by withholding, delaying,

and denying Plaintiff of medical care. Id. at 21.

Plaintiff submitted, inter a/ia, his original Complaint and an Application to Proceed

Without Prepayment of Fees or Costs on December 31, 2020. However, his Application to

Plaintiff’s original Complaint (“original Complaint”) was stamp filed on May 25, 2021. The Court granted Plaintiff’s Motion for Service of Process by Marshals on June 25, 2021. Defendant Brennan was served with the original Complaint on May 28, 2021. As of the date of this Decision and Order, Defendant Brennan is the only named defendant who has made an appearance in this case.

Defendant Brennan filed a Motion to Dismiss on June 16, 2021 in lieu of filing an Answer to the Complaint. In response, Plaintiff filed a Motion to Amend Civil Complaint. On July 23, 2021, the Court granted Plaintiff’s Motion to Amend Civil Complaint. Plaintiff filed his First Amended Complaint on September 7, 2021. Thus, in this Decision and Order when citing to the “Complaint,” the Court is referring to the First Amended Complaint, and when citing to the “original Complaint,” the Court is referring to Plaintiff’s May 25, 2021 Complaint.

2 DECISION AND ORDER DENYiNG MOTION FOR APPOINTMENT OF COUNSEL AND SETTING A HEARING CV0429-2]; Quichocho v. Carbultido, et al.

Proceed Without Prepayment of Fees or Costs was not approved until May 25, 2021. Therefore,

the file stamped date on all the documents submitted to the Court is indicated as May 25, 2021.

This case was assigned to the Honorable Dana A. Gutierrez on May 27, 2021.

Simultaneous to Plaintiff’s filing of his original Complaint, Plaintiff filed a Notice and

Motion for Appointment of Counsel (“Motion”). On June 25, 2021, the Court issued an Order

for Briefing Schedule Re Motion for Appointment of Counsel requiring any oppositions to the

Motion be filed by July 23, 2021 and any replies be filed by August 6, 2021. Defendant Brennan

filed an Opposition to Motion for Appointment of Counsel on July 22, 2021. Plaintiff filed a

Response to Opposition to Motion for Appointment of Counsel on August 11, 2021 although it

was postmarked for August 6, 2021.

The hearing on the Motion was held on August 11, 2021 where Plaintiff and Defendant

Brennan presented oral arguments to the Court. After hearing from the parties, the Court took

the matter under advisement and now issues this Decision and Order.

DISCUSSION

In support of his Motion, Plaintiff asserts that his knowledge of the law is limited, that his

case is complex, and that the Court possesses inherent authority to appoint him counsel. Motion,

at 2-3; Mm. Entry, at 10:08:00-10:18:00 A.M. (Aug. 11, 2021). Further Plaintiff asserts that due

to COVID- 19, the law library has not been officially open for inmate use and access has been

limited. Response to Opp., at 2.

The Local Rules of the Superior Court require the Court to appoint legal counsel in

certain circumstances but grant the Court discretion to appoint counsel in other situations.

Appointment of counsel is mandatory for persons financially unable to obtain adequate

3 . DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING A HEARING CV0429-21; Quichocho v. Carbultido, et at.

representation who are “entitled to appointment of counsel under the Sixth Amendment to the

United States Constitution, or facing loss of liberty and Guam law, the United States

Constitution, or the applicable provision of the Organic Act[.J” MR 1.1.1 (a)(4). Appointment

of counsel is discretionary for persons “financially unable to obtain representation” and whose

“rights under the United States Constitution (or the Organic Act) may be substantially infringed

without the appointment of counsel.” MR 1.1.1 (b)(3).

In considering the appointment of counsel for a plaintiff asserting a § 1983 claim, the

Ninth Circuit has held that generally, a person has no right to counsel in civil actions. Palmer v.

Valdez, 560 f.3d 965, 970 (9th Cir. 2009). Therefore, the mandatory provisions of MR 1.1.1 do

not apply to this proceeding. However, Petitioner has alleged that Defendants have violated

Plaintiff’s constitutional rights giving rise to a § 1983 action. Compl., at 18-22. Thus, if the

Court determines that 1) Plaintiff is financially unable to obtain representation; and 2) Plaintiff’s

rights under the United States Constitution (or the Organic Act) may be substantially infringed

without the appointment of counsel, then the Court may exercise its discretion to appoint

Plaintiff counsel pursuant to MR 1.1.1 (b)(3).

In Palmer, the Ninth Circuit held that in the face of a § 1983 action, “a court may under

‘exceptional circumstances’ appoint counsel for indigent civil litigants[.j” Palmer, 560 F.3d at

970 (citing 28 U.S.C. § 1915(e)(1) which provides that “[tJhe court may request an attorney to

represent any person unable to afford counsel.”). “When determining whether ‘exceptional

circumstances’ exist, a court must consider ‘the likelihood of success on the merits as well as the

ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues

involved.” Id. (citing Weygandt v. Look, 718 f.2d 952, 954 (9th Cir. 1983)). “Neither of these

4 . DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING A HEARING CV0429-21; Quichocho v. Carbullido, et at.

considerations is dispositive and instead must be viewed together.” IcL

A. Likelihood of Success on the Merits.

The Ninth Circuit has indicated that “the articulation of a cognizable claim for relief may

itself be sufficient to satisfy the ‘merit’ analysis on a motion for appointment of counsel.”

Turner v. Riaz, 201$ WL 5962726, at *4 (E.D. Cal. 201$) (citing Tilei v. McGuinness, 642 Fed.

Appx. 719, 722 (9th Cir. 2016) (finding that plaintiff’s “complaint states a claim for re1ief, and

therefore suggests that he may succeed on the merits.”)).

To support an Eighth Amendment claim based on inadequate medical treatment, a

prisoner must show deliberate indifference to the prisoner’s serious medical needs. Tilei, 642

Fed. Appx. at 721-22 (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006)). Deliberate

indifference may include . . . intentionally denying or delaying access to medical care.”

Hamilton v. Brown, 630 F.3d 889, 897 (9th Cir.2011).

The allegations contained in Plaintiff’s Complaint are serious especially in light of the

alleged deterioration of Plaintiff’s medical condition. Compi., at 15-18 (alleging that his

untreated diabetes has caused cataracts and bleeding in his eyes as well as discoloration in his

toes and fmgers). Plaintiff’s central cause of action is based on the claim that Defendants have

violated his Eighth Amendment rights “by intentionally and recklessly withholding delaying, or

denying Plaintiff his diabetic medications, medical and mental health care, disregarding

Plaintiff’s serious medical needs, resulting in worsening of existing and continued substantial

harm and injury, constituting deliberate indifference for Plaintiff’s pro se § 1983 claim.”

Compl., at 19 (internal citations omitted).

Plaintiff supports this allegation by including detailed citations to exhibits which are

5 . DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING A BEARING CV0429-21; Quichocho v. Carbultido, et at.

comprised of the numerous Remedy Requests, Grievance Complaints, and Memorandums from

the DOC staff members in response to Plaintiff’s Remedy Requests, or an allegation that a

response was never provided where one is not attached. See Compl., at 18-32, Exhibits A-Q.

Notwithstanding the allegations regarding Defendants’ actions, Plaintiff admits that he

chose to stop taking his prescribed medication prior to consulting with an attending DOC

physician. Compi., at 4. Further, Plaintiff admits that his medications were refilled; however,

DOC staff informed him that “because plaintiff was non-compliant with the self-medication

system, plaintiff is required to receive medications at Infirmary pill line until plaintiff

demonstrates compliance with self-medication system.” Id., at 10. Plaintiff asserts that he

should be issued medication “like everyone else in the inmate population” and that DOC should

provide an “alternative physician” to conduct the consultation regarding his lab results. M, at

22.

“A difference of opinion’ between medical professionals as to the appropriate course of

treatment does not amount to deliberate indifference to serious medical needs.” Jessy v.

Patacios, 2010 WL 3702452, at *3 (D. Guam 2010) (where the plaintiff alleged denial of

medical treatment and alleged that he did not receive responses to his grievances). “A difference

of opinion between a prisoner-patient and prison medical authorities regarding treatment does

not give rise to a 1983 claim.” Id. (citing Franklin v. Oregon, 662 F.2d 1337, 1344 (9th

Cir. 1981)).

Therefore, at this stage of the proceedings, although Plaintiff asserts a claim for relief, the

Court has some doubts as to whether Plaintiff will be able to succeed on the merits. Further, this

factor must be viewed together with the Plaintiff’s ability to articulate his claims in light of the

6 . DECISION AND ORDER DENYING MOTION FOR APPOINTMENT Of COUNSEL AND SETTING A HEARING CV0429-21; Quichocho v. Carbultido, et at.

complexities of the case. See Jessy, 2010 WL 3702452, at *3

B. Ability to Articulate Claims In Light of the Complexity of the Issues.

Although “deliberate indifference claims involve an interplay of factual and legal issues

that is inherently complex,” the Court must evaluate the Plaintiff’s ability to articulate his claims

prose in light of these complexities. Turner, 2018 WL 5962726, at *4

1. Plaintiff Is Able to Articulate His Claims.

Plaintiff insists that he needs counsel because he is “not knowledgeable in legal matters,”

however, “{lJacldng legal expertise is the norm rather than an exceptional circumstance in pro se

civil rights cases.” Response to Opp., at 3; Haynes v. Asbwy, 2021 WL 165004, at *2 (S.D. Cal.

2021) (citing Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990) (denying

appointment of counsel where plaintiff complained that he had limited access to law library and

lacked a legal education)).

Where a pro se civil rights plaintiff shows he has a good grasp of basic litigation

procedure and has articulated his claims adequately, he does not demonstrate the exceptional

circumstances required for the appointment of counsel. Palmer, 560 F.3d at 970 (9th Cir. 2009)

(finding that the factor regarding inability to articulate claims pro se was not satisfied where the

District Court observed Plaintiff “was well-organized, made clear points, and presented evidence

effectively”).

Here, the Court has reviewed the documents filed by Plaintiff in this case including the

original Complaint, Application to Proceed Without Prepayment of Fees or Costs, Motion for

Service of Process by Marshals, Motion to Amend Civil Complaint, First Amended Complaint,

Motion for Appointment of Counsel, and Response to Opposition to Motion for Appointment of

7 n 41) DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING A BEARING CV0429-21; Quichocho v. Carbullido, et al.

Counsel. In each of these pleadings, the Plaintiff was able to cite to the applicable statutes or

court rules as well as relevant case law. His pleadings have been organized by the use of

headers, Plaintiff has made clear arguments, and he references his attached exhibits providing

evidence to support his claims.

While the Court notes that the litigation to date has not been extensive, these documents

demonstrate that Plaintiff is able to articulate his claims and navigate civil procedure without

legal assistance, and has done so while facing the pandemic-related challenges of which he

complains. Haynes, 2021 WL 165004, at *2 (where the plaintiff was able to file nearly identical

pleadings to the pleadings in this case and the court held that such filings demonstrated an ability

to articulate his claims).

2. Limitations Caused by COVID-19 Are Not Sufficient to Appoint Counsel.

The Court is sympathetic to the very real difficulties Plaintiff is likely experiencing due

to the COVID- 19 pandemic; however, minimal to no access to the law library does not establish

exceptional circumstances. See Haynes, 2021 WL 165004, at *2. Furthermore, courts in the

Ninth Circuit have declined to find that challenges presented by the COVID- 19 pandemic

establish exceptional circumstances in the context of an appointment of counsel analysis. See

e.g., Haynes, 2021 WL 165004, at *2; Fitts v. Washington, 2020 WL 2850564, at *1 (W.D.

Wash. June 2, 2020) (denying motion for appointment of counsel because, “[a]lthough Plaintiff

contends he is unable to access the law library because of social distancing, this bare assertion

does not justify the appointment of counsel at this time, nor does the COVID-19 pandemic.”);

Fauitiy v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal. May 19, 2020) (denying motion for

appointment of counsel and explaining that “{cjircumstances common to most prisoners, such as

8 . I, DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING A HEARING CV0429-21; Quichocho v. Carbullido, et cii.

lack of legal education and limited law library access, do not establish exceptional circumstances

supporting appointment of counsel . . . The impacts of the COVID- 19 health crisis on prison

operations are also common to all prisoners.”).

While a pro se litigant may be better served with the assistance of counsel, so long as a

pro se litigant, such as Plaintiff in this instance, is able to “articulate his claims against the

relative complexity of the matter,” the “exceptional circumstances” which might require the

appointment of counsel do not exist. Rodriguez v. US., 2021 WL 1172777, at *1 (E.D. Cal.

2021). Accordingly, the Plaintiff’s ability to clearly and effectively articulate his claims in the

face of these complexities support a finding that Plaintiff has not shown that exceptional

circumstances warrant the appointment of counsel at this stage of the proceedings.

C. Denial Is Without Prejudice.

Despite the Court’s decision not to appoint counsel at this time, the Court notes that the

case may take a direction which could warrant the appointment of counsel in the future. For

example, in Clemons v. Hill, the Ninth Circuit held that where “without counsel and while

incarcerated, [the Plaintiff] was expected to locate a medical expert willing to submit an affidavit

on his behalf, manage, discovery for his multi-party multi-claim lawsuit, and conduct a full

trial,” the trial court should have appointed counsel for the plaintiff. Clemons, 743 Fed. Appx.

885, 886 (9th Cir. 2018).

As another example, in Tiltisy v. Washington State Dept. of Corrections, the district court

of Washington held that due to the early stage of the proceedings, the plaintiff had not

established extraordinary circumstances warranting the appointment of counsel. Tillisy, 2019

WL 1489143, at *2 (W.D. Wash. 2019). The Tiltisy Court denied the motion for appointment of

9 DECISION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND SETTING A BEARING CV0429-21; Quichocho v. Carbuttido, et at.

counsel without prejudice noting that the plaintiff may file a new motion for appointment of

counsel once the case has further developed if he is able to demonstrate the extraordinary

circumstances necessary to warrant appointment of counsel. Id.; see e.g., Perkins v. Anguto,

2020 WL 9065870, at *2 (S.D. Cal. 2020); Bettys v. Quigley, 2016 WL 6395134, at *2 (W.D.

Wash. 2016) (denying motion for appointment of counsel without prejudice and noting plaintiff

may refile if appropriate at a later date).

CONCLUSION

Accordingly, for the foregoing reasons and in the interest of judicial economy, the Court

hereby DENIES Plaintiff’s Motion for Appointment of Counsel WITHOUT PREJUDICE.

Plaintiff may file a new motion for appointment of counsel if the case further develops such that

Plaintiff is able to demonstrate extraordinary circumstances necessary to warrant appointment of

counsel.

A hearing on Defendant Brennan’s Motion for Default; Renewed Motion to Dismiss shall

be held on November 29, 2021, at 2:00 p.m. The hearing shall be held in person.

SOORDERED: I

ItJ HONO1 Judge, S erio ourt fG m

SERVICE VIA EMAIL I acknowledge that an electronic copy of the original was e-mailed to:

— 1 The: Date: ‘j /%‘%‘ Joseph Baa, Jr.