2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RANDY MATTHEW CORDERO, Case No.: 21cv1609-LL(MSB)
12 Plaintiff, ORDER DENYING: (1) MOTION TO 13 v. APPOINT COUNSEL; (2) MOTION FOR ORDER TO SHOW CAUSE; AND (3) 14 CALIFORNIA DEPARTMENT OF MOTION FOR SANCTIONS [ECF NO. 56] CORRECTIONS AND REHABILITATION, et 15 al., 16 Defendants. 17 18 19 I. RELEVANT BACKGROUND 20 Plaintiff Randy Matthew Cordero (“Plaintiff”) is incarcerated in state prison and 21 proceeding pro se and in forma pauperis (“IFP”) in this civil rights action filed pursuant 22 to 42 U.S.C. § 1983. On December 17, 2021, Plaintiff filed a First Amended Complaint 23 (“FAC”) against the California Department of Corrections and Rehabilitation (“CDCR”). 24 (ECF No. 22.) On April 26, 2022, the Court issued an Order finding Plaintiff’s FAC 25 sufficient to state plausible Eighth Amendment claims against Defendants Bailey, 26 Camacho, Galaviz, Gutierrez, and Kako. (ECF No. 28.) The Court also denied Plaintiff’s 27 Motion for Appointment of Counsel [ECF No. 25], finding he failed to establish the 2 to Gutierrez, a letter attached to the USM-285 Form indicates that CDCR officials were 3 unable “to identify any staff member with this name after a thorough search of [their] 4 records and files.” (ECF No. 40-1.) On October 11, 2022, Plaintiff filed a “Motion for 5 Order to Show Cause” in which he insisted there was a staff member named “Gutierrez” 6 at Richard J. Donovan (“RJD”) at the time the incident alleged in the FAC took place. 7 (ECF No. 48.) After reviewing the docket and pleadings, the Court directed the Deputy 8 Attorney General assigned to this case to conduct a new search for a correctional staff 9 member with the surname “Gutierrez” who was working at RJD, Facility C, Building 15 10 on August 21, 2020. (ECF No. 49.) On November 14, 2022, the Deputy Attorney General 11 filed a Declaration notifying the Court that, after a new search, CDCR officials were 12 unable to identify an individual meeting these criteria. (ECF No. 53.) 13 Now pending before the Court is Plaintiff’s December 14, 2022, Motion entitled 14 “Plaintiff’s Second Motion for Order to Show Cause; Motion for Appointment of 15 Counsel; and Motion for Court to Impose Possible Sanctions.” (ECF No. 56.) First, 16 Plaintiff renews his request for appointment of counsel, stating this case is “extremely 17 sensitive” and he needs counsel to help uphold his rights. (Id. at 3–4.) Second, Plaintiff 18 asks the Court to issue an Order to Show Cause why “Defendant Gutierrez” has not 19 been served. (Id. at 1–4.) Finally, Plaintiff requests that the Court impose sanctions 20 against Defendants “for their [sic] intentional practice of ‘stonewalling’ Plaintiff by 21 refusing and failing to serve Defendant Gutierrez.” (Id. at 4.) For the reasons set forth 22 below, the Court DENIES without prejudice Plaintiff’s Motion [ECF No. 56]. 23 II. MOTION TO APPOINT COUNSEL 24 Plaintiff initially filed a Motion to Appoint Counsel on January 21, 2022, which the 25 Court denied on April 26, 2022. (ECF Nos. 25 & 28.) Now, Plaintiff renews his request 26 due to the “sensitive” nature and “seriousness” of his case. (ECF No. 56 at 3.) He asks
27 for counsel to be appointed to help uphold his rights and says failure to do so will 2 Plaintiff to “consider asking the Court to appoint an attorney for you.” (Id. at 5–6.) Mr. 3 Freedman tells Plaintiffs that lawsuits can be challenging to pursue from prison, and he 4 is likely to “get a better result if you have someone representing you.” (Id. at 5.) 5 A. Legal Standard 6 The Constitution provides no right to appointment of counsel in a civil case unless 7 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. 8 Dep’t Soc. Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 9 2009). Additionally, there is no constitutional right to a court-appointed attorney in 10 cases filed by inmates arising under 42 U.S.C. § 1983. Storseth v. Spellman, 654 F.2d 11 1349, 1353 (9th Cir. 1981). While 28 U.S.C. § 1915(e)(1) gives district courts discretion 12 to “request” that an attorney represent indigent civil litigants, it may only be exercised 13 upon a showing of “exceptional circumstances.” Agyeman v. Corr. Corp. Am., 390 F.3d 14 1101, 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). When 15 assessing whether exceptional circumstances exist, the Court must undergo “an 16 evaluation of both ‘the likelihood of success on the merits [and] the ability of the 17 petitioner to articulate his claims pro se in light of the complexity of the legal issues 18 involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting 19 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Courts must review both factors 20 before deciding whether to appoint counsel, and neither factor is individually 21 dispositive. Id. 22 B. Discussion 23 a. Likelihood of Success on the Merits 24 The Court denied Plaintiff’s previous Motion to Appoint Counsel because Plaintiff 25 presented no evidence to the Court regarding the likelihood of his success on the merits 26 in this case. (ECF No. 28.) Plaintiff now renews his request for appointment of counsel,
27 without providing any new evidence demonstrating he is likely to be successful. (ECF 2 determine the strength of these claims. See e.g., Arellano v. Blahnik, Case No. 3 16cv2412-CAB-RNB, 2018 WL 4599697, at *2 n.1 (S.D. Cal. Sept. 25, 2018) (denying 4 motion to appoint counsel because “[a]lthough plaintiff's [ ] claim survived defendant's 5 motion to dismiss, it is still too early to determine the likelihood of success on the 6 merits.”). Therefore, Plaintiff fails to satisfy the first factor of the Wilborn test. See, 7 e.g., Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) (finding that where the 8 plaintiff offered “no evidence other than his own assertions to support his claims,” he 9 failed to satisfy the first Wilborn factor). 10 b. Plaintiff’s Ability to Articulate Claims 11 Where a pro se civil rights plaintiff shows he has a good grasp of basic litigation 12 procedure and has articulated his claims adequately, he does not demonstrate the 13 exceptional circumstances required for the appointment of counsel. See Palmer v. 14 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (finding that the second Wilborn factor was not 15 satisfied where the District Court observed Plaintiff “was well-organized, made clear 16 points, and presented evidence effectively”). The Court has reviewed all of the 17 documents filed by Plaintiff in this case including the FAC [ECF No. 22], Motion to 18 Appoint Counsel [ECF No. 25], Motion for Reconsideration [ECF No. 31], Motion for 19 Extension of Time [ECF No. 34], and the instant Motion [ECF No. 56]. The Court notes 20 that Plaintiff also appeared telephonically at a Case Management Conference on 21 October 21, 2022. (ECF No.
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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RANDY MATTHEW CORDERO, Case No.: 21cv1609-LL(MSB)
12 Plaintiff, ORDER DENYING: (1) MOTION TO 13 v. APPOINT COUNSEL; (2) MOTION FOR ORDER TO SHOW CAUSE; AND (3) 14 CALIFORNIA DEPARTMENT OF MOTION FOR SANCTIONS [ECF NO. 56] CORRECTIONS AND REHABILITATION, et 15 al., 16 Defendants. 17 18 19 I. RELEVANT BACKGROUND 20 Plaintiff Randy Matthew Cordero (“Plaintiff”) is incarcerated in state prison and 21 proceeding pro se and in forma pauperis (“IFP”) in this civil rights action filed pursuant 22 to 42 U.S.C. § 1983. On December 17, 2021, Plaintiff filed a First Amended Complaint 23 (“FAC”) against the California Department of Corrections and Rehabilitation (“CDCR”). 24 (ECF No. 22.) On April 26, 2022, the Court issued an Order finding Plaintiff’s FAC 25 sufficient to state plausible Eighth Amendment claims against Defendants Bailey, 26 Camacho, Galaviz, Gutierrez, and Kako. (ECF No. 28.) The Court also denied Plaintiff’s 27 Motion for Appointment of Counsel [ECF No. 25], finding he failed to establish the 2 to Gutierrez, a letter attached to the USM-285 Form indicates that CDCR officials were 3 unable “to identify any staff member with this name after a thorough search of [their] 4 records and files.” (ECF No. 40-1.) On October 11, 2022, Plaintiff filed a “Motion for 5 Order to Show Cause” in which he insisted there was a staff member named “Gutierrez” 6 at Richard J. Donovan (“RJD”) at the time the incident alleged in the FAC took place. 7 (ECF No. 48.) After reviewing the docket and pleadings, the Court directed the Deputy 8 Attorney General assigned to this case to conduct a new search for a correctional staff 9 member with the surname “Gutierrez” who was working at RJD, Facility C, Building 15 10 on August 21, 2020. (ECF No. 49.) On November 14, 2022, the Deputy Attorney General 11 filed a Declaration notifying the Court that, after a new search, CDCR officials were 12 unable to identify an individual meeting these criteria. (ECF No. 53.) 13 Now pending before the Court is Plaintiff’s December 14, 2022, Motion entitled 14 “Plaintiff’s Second Motion for Order to Show Cause; Motion for Appointment of 15 Counsel; and Motion for Court to Impose Possible Sanctions.” (ECF No. 56.) First, 16 Plaintiff renews his request for appointment of counsel, stating this case is “extremely 17 sensitive” and he needs counsel to help uphold his rights. (Id. at 3–4.) Second, Plaintiff 18 asks the Court to issue an Order to Show Cause why “Defendant Gutierrez” has not 19 been served. (Id. at 1–4.) Finally, Plaintiff requests that the Court impose sanctions 20 against Defendants “for their [sic] intentional practice of ‘stonewalling’ Plaintiff by 21 refusing and failing to serve Defendant Gutierrez.” (Id. at 4.) For the reasons set forth 22 below, the Court DENIES without prejudice Plaintiff’s Motion [ECF No. 56]. 23 II. MOTION TO APPOINT COUNSEL 24 Plaintiff initially filed a Motion to Appoint Counsel on January 21, 2022, which the 25 Court denied on April 26, 2022. (ECF Nos. 25 & 28.) Now, Plaintiff renews his request 26 due to the “sensitive” nature and “seriousness” of his case. (ECF No. 56 at 3.) He asks
27 for counsel to be appointed to help uphold his rights and says failure to do so will 2 Plaintiff to “consider asking the Court to appoint an attorney for you.” (Id. at 5–6.) Mr. 3 Freedman tells Plaintiffs that lawsuits can be challenging to pursue from prison, and he 4 is likely to “get a better result if you have someone representing you.” (Id. at 5.) 5 A. Legal Standard 6 The Constitution provides no right to appointment of counsel in a civil case unless 7 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. 8 Dep’t Soc. Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 9 2009). Additionally, there is no constitutional right to a court-appointed attorney in 10 cases filed by inmates arising under 42 U.S.C. § 1983. Storseth v. Spellman, 654 F.2d 11 1349, 1353 (9th Cir. 1981). While 28 U.S.C. § 1915(e)(1) gives district courts discretion 12 to “request” that an attorney represent indigent civil litigants, it may only be exercised 13 upon a showing of “exceptional circumstances.” Agyeman v. Corr. Corp. Am., 390 F.3d 14 1101, 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). When 15 assessing whether exceptional circumstances exist, the Court must undergo “an 16 evaluation of both ‘the likelihood of success on the merits [and] the ability of the 17 petitioner to articulate his claims pro se in light of the complexity of the legal issues 18 involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting 19 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Courts must review both factors 20 before deciding whether to appoint counsel, and neither factor is individually 21 dispositive. Id. 22 B. Discussion 23 a. Likelihood of Success on the Merits 24 The Court denied Plaintiff’s previous Motion to Appoint Counsel because Plaintiff 25 presented no evidence to the Court regarding the likelihood of his success on the merits 26 in this case. (ECF No. 28.) Plaintiff now renews his request for appointment of counsel,
27 without providing any new evidence demonstrating he is likely to be successful. (ECF 2 determine the strength of these claims. See e.g., Arellano v. Blahnik, Case No. 3 16cv2412-CAB-RNB, 2018 WL 4599697, at *2 n.1 (S.D. Cal. Sept. 25, 2018) (denying 4 motion to appoint counsel because “[a]lthough plaintiff's [ ] claim survived defendant's 5 motion to dismiss, it is still too early to determine the likelihood of success on the 6 merits.”). Therefore, Plaintiff fails to satisfy the first factor of the Wilborn test. See, 7 e.g., Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) (finding that where the 8 plaintiff offered “no evidence other than his own assertions to support his claims,” he 9 failed to satisfy the first Wilborn factor). 10 b. Plaintiff’s Ability to Articulate Claims 11 Where a pro se civil rights plaintiff shows he has a good grasp of basic litigation 12 procedure and has articulated his claims adequately, he does not demonstrate the 13 exceptional circumstances required for the appointment of counsel. See Palmer v. 14 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (finding that the second Wilborn factor was not 15 satisfied where the District Court observed Plaintiff “was well-organized, made clear 16 points, and presented evidence effectively”). The Court has reviewed all of the 17 documents filed by Plaintiff in this case including the FAC [ECF No. 22], Motion to 18 Appoint Counsel [ECF No. 25], Motion for Reconsideration [ECF No. 31], Motion for 19 Extension of Time [ECF No. 34], and the instant Motion [ECF No. 56]. The Court notes 20 that Plaintiff also appeared telephonically at a Case Management Conference on 21 October 21, 2022. (ECF No. 51.) 22 The information before the Court suggests that the complexity of this case does 23 not exceed Plaintiff’s abilities. To date, Plaintiff has been able to articulate his claims, 24 communicate with the Court, and navigate civil procedure without legal assistance. 25 Thus, Plaintiff has not established that this case is “exceptional” or that the issues in it 26 are particularly complex. Other factors like indigency, incarceration, and being
27 untrained in the law are difficulties that any imprisoned litigant would have in 2 1990) (upholding denial of appointment of counsel where plaintiff complained that he 3 had limited access to law library and lacked a legal education). 4 c. Conclusion 5 The evidence before the Court does not demonstrate that Plaintiff enjoys a 6 likelihood of success on the merits or that he is unable to articulate his claims and 7 litigate his case without the assistance of an attorney. Accordingly, the Court finds 8 Plaintiff has not established exceptional circumstances required for the appointment of 9 counsel pursuant to 28 U.S.C. § 1915(e)(1). The Court DENIES without prejudice 10 Plaintiff’s Motion to Appoint Counsel. 11 III. MOTION FOR ORDER TO SHOW CAUSE 12 Plaintiff also requests the Court issue an Order to Show Cause “for the 13 Defendants to explain ‘why’ [they] continue to refuse to serve Defendant Gutierrez . . . 14 and failed to follow CDCR policy and procedures to provide a photo identification line- 15 up of the various Gutierrez’s.” (ECF No. 56 at 1.) Plaintiff says that “Defendants are 16 intentionally ‘stonewalling’ Plaintiff by refusing and failing to serve Defendant Gutierrez 17 because it will further weaken their defense and unveil additional misconduct.” (Id.) 18 Although he acknowledges the Deputy Attorney General conducted a new search for a 19 staff member named “Gutierrez,” he asks about “other possible additional Gutierrez’s 20 who were not scheduled to work on August 21, 2020” or the “possibility that the 21 Gutierrez who in fact escorted me with Defendant Galaviz had ‘left his assigned post 22 without supervisor approval.’ ” (Id. at 2.) Plaintiff suggests that the other named 23 Defendants—Bailey, Camacho, Galaviz, and Kako—can identify the specific “Gutierrez” 24 who escorted him to the gym. (Id.) Plaintiff does not cite to any legal authority 25 supporting his request for an Order to Show Cause. 26 A. Relevant Background
27 On October 20, 2022, the Court ordered the Deputy Attorney General assigned to 2 15 on August 21, 2020. (ECF No. 49 at 6.) On November 14, 2022, the Deputy Attorney 3 General filed a Declaration in response to the Court’s Order. (ECF No. 53.) In it, she says 4 she conducted a new search with the assistance of the RJD litigation coordinator, which 5 revealed three individuals with the surname Gutierrez who were working at RJD on the 6 date of the incident. (ECF No. 53 at 2.) However, based on review of Plaintiff’s FAC, the 7 Incident Report, and other records, she determined that none of the officers were 8 present at the time of the incident, which took place at approximately 7:22 p.m. (Id.) 9 First, C. Gutierrez was assigned to the RJD hospital and worked from 6:00 a.m. until 2:00 10 p.m.; therefore, the Deputy Attorney General determined he was not the Gutierrez 11 identified by Plaintiff. (Id.) Second, J. Gutierrez was assigned to Facility C Culinary; 12 therefore, the Deputy Attorney General determined he was not the Gutierrez identified 13 by Plaintiff. (Id. at 3.) Finally, R. Gutierrez was working as a control booth operator 14 from 6:00 a.m. until 2:00 p.m.; therefore, the Deputy Attorney General determined he 15 was not the Gutierrez identified by Plaintiff. (Id.) 16 B. Discussion 17 Based on the foregoing, the Court finds that the Deputy Attorney General has 18 taken reasonable steps to comply with the Court’s October 20, 2022, Order [ECF No. 19 49]. As she stated in her Declaration, the Deputy Attorney General reached out to the 20 RJD litigation coordinator and searched for all individuals with the surname “Gutierrez” 21 working at RJD at the time of the incident. (ECF No. 53.) After reviewing the FAC, 22 Incident Report, and other records, the Deputy Attorney General reasonably ruled out 23 three individuals with the surname “Gutierrez” because they were not working at the 24 approximate time of the incident, they were working in a different location, or both. 25 (Id. at 2–3.) Although it is unfortunate this search was unsuccessful, the Court is 26 satisfied that the Deputy Attorney General made a good faith effort and abided by the
27 Court’s Order. 2 not known prior to the filing of a complaint, the plaintiff should be given an opportunity 3 through discovery to identify the unknown defendants.” Wakefield v. Thompson, 177 4 F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 5 1980)); see also Coreno v. Hiles, 09-cv-2504-LAB-POR, 2010 WL 2404395, at *3 (S.D. Cal. 6 June 14, 2010). Here, Plaintiff has named, and the U.S. Marshals have effectuated 7 service, on Defendants Bailey, Camacho, Galaviz, and Kako. (ECF Nos. 40–44.) The only 8 remaining party who has not been served is “Defendant Gutierrez.” (See generally 9 Docket.) Plaintiff is entitled and encouraged to use discovery methods such as 10 interrogatories and requests for production to “uncover the identities” of any unnamed 11 defendants, including Gutierrez. See Wakefield, 177 F.3d at 1163 (quoting Gillespie, 629 12 F.2d at 642). In the interim, the Court finds good cause for the case to proceed. 13 C. Conclusion 14 In conclusion, the Court DENIES without prejudice Plaintiff’s Motion for an Order 15 to Show Cause. The Court GRANTS LEAVE for Plaintiff to uncover the identify of 16 “Defendant Gutierrez” through the course of discovery and amend his Complaint and 17 pleadings thereafter. The Court will be sure to set the deadline to join other parties, 18 amend the pleadings, or to file additional pleadings sufficiently out to allow for Plaintiff 19 to conduct these discovery efforts. 20 IV. MOTION FOR SANCTIONS 21 Finally, Plaintiff asks that the Court “impose sanctions against these Defendants 22 for their intentional practice of ‘stonewalling’ Plaintiff by refusing and failing to serve 23 Defendant Gutierrez.” (ECF No. 56 at 4.) Plaintiff does not cite to any legal authority or 24 provide any specific evidence of sanctionable conduct. As stated above, the Court finds 25 that the Deputy Attorney General has abided by the Court’s Orders and undertaken 26 diligent efforts to identify “Defendant Gutierrez.” Accordingly, the Court DENIES
27 without prejudice Plaintiff’s Motion for Sanctions. 1 V. Conclusion 2 For the reasons stated above, the Court DENIES without prejudice Plaintiff's 3 || Motion [ECF No. 56]. The Court GRANTS LEAVE for Plaintiff to uncover the identify of 4 || “Defendant Gutierrez” through the course of discovery and amend his Complaint and 5 || pleadings thereafter. 6 IT IS SO ORDERED. 7 Dated: December 20, 2022 _ -
_ 2 FZ — 9 Honorable Michael S. Berg United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28