1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUSTIN SALMEN, CDCR #BK-5881, Case No.: 3:20-cv-02088-GPC-KSC
12 Plaintiff, ORDER (1) DENYING MOTION TO 13 v. APPOINT COUNSEL; (2) DENYING MOTION TO ALERT FBI; and (3) 14 CALIFORNIA DEP’T OF DENYING PLAINTIFF’S CORRECTIONS AND 15 REQUESTS FOR ADMISSION REHABILITATION; S. ROBERTS; M. DIRECTED TO DEFENDANT CHAU 16 GLYNN; J. HODGES; A. KENDALL;
DR. CHAU; H. FRANKLIN; S. 17 [Doc. Nos. 24, 25, 27] ANDERSON; A. SHITTU; S. GATES, 18 Defendants. 19
20 Plaintiff Justin Salmen (“plaintiff”) is proceeding pro se and in forma pauperis in 21 this civil rights action filed pursuant to 42 U.S.C. § 1983. See Doc. No. 7. The Court 22 recently accepted for filing plaintiff’s omnibus document seeking (among other things) the 23 appointment of counsel and requesting that the Court “alert the FBI of located evidence of 24 corruption” at Richard J. Donovan correctional facility (“RJD”).1 See Mot. at 1, 5-6. Also 25 26 27 1 To facilitate management of the Court’s docket, an identical copy of plaintiff’s filing was entered separately for each item of relief sought. See Doc. Nos. 24, 25, 26, 27 and 28. The Court will hereafter 28 1 included in plaintiffs’ submission were four Requests for Admission directed to defendant 2 Chau. See id. at 4. This Order addresses plaintiff’s Motion for Appointment of Counsel 3 [Doc. No. 24], Motion to Alert the F.B.I. [Doc. No. 25], and discovery requests [Doc. No. 4 27]. All other relief sought in the Motion remains pending before the Honorable Gonzalo 5 P. Curiel. 6 A. Background 7 On November 9, 2020, plaintiff filed his First Amended Complaint (“FAC”), 8 alleging that defendants Hodges and Chau violated his rights under the First and Eighth 9 Amendments. See generally Doc. No. 7. On November 23, 2020, the District Court 10 dismissed all claims against Hodges and plaintiff’s First Amendment claims against Chau. 11 See Doc. No. 8 at 7. However, plaintiff’s Eighth Amendment claims against Chau survived 12 the District Court’s initial screening. See id. at 4. 13 In his Motion, plaintiff reiterates his since-dismissed allegations that Hodges is 14 “altering legal documents” and “obstructing” plaintiff’s access to the grievance process. 15 Compare Mot. at 2-3 with Doc. No. 7 at 3. Plaintiff requests that the Court appoint counsel 16 to represent him because he is “unable to present his case” due to both Chau’s negligence 17 and Hodges’ “intercepting [his] legal documents,” and further requests that the Court “alert 18 the FBI.” Mot. at 5. Plaintiff also demands that defendant Chau admit the truth of these 19 and other allegations. Id. at 4. 20 B. Motion for Appointment of Counsel 21 Plaintiff’s Motion for Appointment of Counsel, his fifth since filing suit in October 22 2020 (see Doc. Nos. 3, 11, 14 and 18), is DENIED. As the Court has explained, “there is 23 no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust Corp., 32 24 F.3d 1360, 1363 (9th Cir. 1994). The Court may, in its discretion, appoint counsel to 25 represent an indigent litigant upon a showing of “exceptional circumstances.” Terrell v. 26 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “Exceptional circumstances” warranting the 27 appointment of counsel exist only where a plaintiff demonstrates that he is likely to succeed 28 /// 1 on the merits of his claims, and that he is unable to effectively articulate those claims. 2 Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014). 3 “A plaintiff that provides no evidence of his likelihood for success at trial fails to 4 satisfy the first factor of the [exceptional circumstances] test.” Torbert v. Gore, No. 5 14cv2911-BEN-NLS, 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). Here, plaintiff 6 merely reiterates the allegations in his FAC. Yet, the fact that some of these allegations 7 survived initial screening “by no means demonstrates that [plaintiff] is likely to win.” 8 Ortega v. CSP-SAC Prison Officials, No. 2:08–00588 SOM, 2010 WL 2598228, at *1 (D. 9 Haw. June 7, 2010). There is simply no basis in the record before the Court, at this early 10 stage of the proceedings, upon which to predict plaintiff’s success at trial. Thus, the Court 11 reaffirms its determination that this factor weighs against appointing counsel to represent 12 plaintiff at taxpayer expense. See Doc. No. 12 at 3; Doc. No. 15 at 4; Doc. No. 19 at 2. 13 The Court is also not persuaded that plaintiff lacks the ability to pursue his claims. 14 Although he complains that Chau and Hodges, in concert with the Attorney General, are 15 “intercepting” his documents and that he is “unable to present [his] case,” see Mot. at 5, 16 plaintiff’s considerable activity on the docket shows otherwise. In the present action, 17 plaintiff has filed two complaints, a motion for leave to proceed in forma pauperis, five 18 motions for the appointment of counsel, an ex parte letter to the Court, and the instant 19 Motion in which he seeks (in addition to the relief addressed in this Order) to strike 20 defendant’s Answer and for the District Court’s reconsideration of its dismissal of Hodges. 21 These filings demonstrate to the Court that plaintiff understands basic litigation procedure 22 and can effectively articulate his claims, notwithstanding any alleged “conspir[acy]” to 23 prevent him from doing so. See Mot. at 5. 24 Accordingly, plaintiff’s fifth Motion for Appointment of Counsel is DENIED. 25 C. Motion to Alert the F.B.I. 26 Plaintiff also moves the Court to “alert the FBI of located evidence of corruption at 27 RJD.” Mot. at 1, 6. Plaintiff cites no authority for this unusual request. In any event, the 28 /// 1 Court does not find that there is good cause to enlist the F.B.I. in investigating plaintiff’s 2 allegations of corruption in these proceedings. 3 Accordingly, plaintiff’s Motion to Alert the F.B.I. is DENIED. 4 D. Requests for Admission 5 As noted, included in plaintiff’s Motion are four Requests for Admission (“RFAs”) 6 directed to defendant Chau. Mot. at 4. There is no motion or other matter currently pending 7 on the Court’s docket to which these Requests for Admission pertain. Plaintiff is 8 admonished that pursuant to Civil Local Rule 36.1.c., unless otherwise requested by the 9 Court, discovery is not to be lodged or filed unless it pertains to a pending motion or other 10 request for relief. CivLR 36.1.c. 11 Furthermore, to the extent plaintiff’s inclusion of the RFAs in the Motion can be 12 construed as a Motion to Compel defendants’ responses thereto, such Motion to Compel is 13 premature. It does not appear to the Court that these RFAs have been served on defendant 14 Chau other than being included in the Motion; nor is there any indication that defendant 15 has had the opportunity to object, respond, or meet and confer with plaintiff regarding these 16 discovery requests. See Chambers’ Rules and Pretrial Procedures for the Honorable Karen 17 S. Crawford (“Chambers’ Rules”), § V.III.A. (requiring parties to meet and confer before 18 raising discovery disputes). Moreover, the Court has not yet convened the Early Neutral 19 Evaluation and Case Management Conference (“ENE/CMC”) in this matter, both of which 20 are scheduled to take place on March 30, 2021. While the parties are free to exchange 21 discovery by mutual agreement before that time, consistent with Federal Rule of Civil 22 Procedure 16 and this District’s Local Rules, the Court will not entertain any discovery 23 motion before the ENE/CMC. See Fed. R. Civ. P. 16; CivLR 16.1.d.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUSTIN SALMEN, CDCR #BK-5881, Case No.: 3:20-cv-02088-GPC-KSC
12 Plaintiff, ORDER (1) DENYING MOTION TO 13 v. APPOINT COUNSEL; (2) DENYING MOTION TO ALERT FBI; and (3) 14 CALIFORNIA DEP’T OF DENYING PLAINTIFF’S CORRECTIONS AND 15 REQUESTS FOR ADMISSION REHABILITATION; S. ROBERTS; M. DIRECTED TO DEFENDANT CHAU 16 GLYNN; J. HODGES; A. KENDALL;
DR. CHAU; H. FRANKLIN; S. 17 [Doc. Nos. 24, 25, 27] ANDERSON; A. SHITTU; S. GATES, 18 Defendants. 19
20 Plaintiff Justin Salmen (“plaintiff”) is proceeding pro se and in forma pauperis in 21 this civil rights action filed pursuant to 42 U.S.C. § 1983. See Doc. No. 7. The Court 22 recently accepted for filing plaintiff’s omnibus document seeking (among other things) the 23 appointment of counsel and requesting that the Court “alert the FBI of located evidence of 24 corruption” at Richard J. Donovan correctional facility (“RJD”).1 See Mot. at 1, 5-6. Also 25 26 27 1 To facilitate management of the Court’s docket, an identical copy of plaintiff’s filing was entered separately for each item of relief sought. See Doc. Nos. 24, 25, 26, 27 and 28. The Court will hereafter 28 1 included in plaintiffs’ submission were four Requests for Admission directed to defendant 2 Chau. See id. at 4. This Order addresses plaintiff’s Motion for Appointment of Counsel 3 [Doc. No. 24], Motion to Alert the F.B.I. [Doc. No. 25], and discovery requests [Doc. No. 4 27]. All other relief sought in the Motion remains pending before the Honorable Gonzalo 5 P. Curiel. 6 A. Background 7 On November 9, 2020, plaintiff filed his First Amended Complaint (“FAC”), 8 alleging that defendants Hodges and Chau violated his rights under the First and Eighth 9 Amendments. See generally Doc. No. 7. On November 23, 2020, the District Court 10 dismissed all claims against Hodges and plaintiff’s First Amendment claims against Chau. 11 See Doc. No. 8 at 7. However, plaintiff’s Eighth Amendment claims against Chau survived 12 the District Court’s initial screening. See id. at 4. 13 In his Motion, plaintiff reiterates his since-dismissed allegations that Hodges is 14 “altering legal documents” and “obstructing” plaintiff’s access to the grievance process. 15 Compare Mot. at 2-3 with Doc. No. 7 at 3. Plaintiff requests that the Court appoint counsel 16 to represent him because he is “unable to present his case” due to both Chau’s negligence 17 and Hodges’ “intercepting [his] legal documents,” and further requests that the Court “alert 18 the FBI.” Mot. at 5. Plaintiff also demands that defendant Chau admit the truth of these 19 and other allegations. Id. at 4. 20 B. Motion for Appointment of Counsel 21 Plaintiff’s Motion for Appointment of Counsel, his fifth since filing suit in October 22 2020 (see Doc. Nos. 3, 11, 14 and 18), is DENIED. As the Court has explained, “there is 23 no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust Corp., 32 24 F.3d 1360, 1363 (9th Cir. 1994). The Court may, in its discretion, appoint counsel to 25 represent an indigent litigant upon a showing of “exceptional circumstances.” Terrell v. 26 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “Exceptional circumstances” warranting the 27 appointment of counsel exist only where a plaintiff demonstrates that he is likely to succeed 28 /// 1 on the merits of his claims, and that he is unable to effectively articulate those claims. 2 Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014). 3 “A plaintiff that provides no evidence of his likelihood for success at trial fails to 4 satisfy the first factor of the [exceptional circumstances] test.” Torbert v. Gore, No. 5 14cv2911-BEN-NLS, 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016). Here, plaintiff 6 merely reiterates the allegations in his FAC. Yet, the fact that some of these allegations 7 survived initial screening “by no means demonstrates that [plaintiff] is likely to win.” 8 Ortega v. CSP-SAC Prison Officials, No. 2:08–00588 SOM, 2010 WL 2598228, at *1 (D. 9 Haw. June 7, 2010). There is simply no basis in the record before the Court, at this early 10 stage of the proceedings, upon which to predict plaintiff’s success at trial. Thus, the Court 11 reaffirms its determination that this factor weighs against appointing counsel to represent 12 plaintiff at taxpayer expense. See Doc. No. 12 at 3; Doc. No. 15 at 4; Doc. No. 19 at 2. 13 The Court is also not persuaded that plaintiff lacks the ability to pursue his claims. 14 Although he complains that Chau and Hodges, in concert with the Attorney General, are 15 “intercepting” his documents and that he is “unable to present [his] case,” see Mot. at 5, 16 plaintiff’s considerable activity on the docket shows otherwise. In the present action, 17 plaintiff has filed two complaints, a motion for leave to proceed in forma pauperis, five 18 motions for the appointment of counsel, an ex parte letter to the Court, and the instant 19 Motion in which he seeks (in addition to the relief addressed in this Order) to strike 20 defendant’s Answer and for the District Court’s reconsideration of its dismissal of Hodges. 21 These filings demonstrate to the Court that plaintiff understands basic litigation procedure 22 and can effectively articulate his claims, notwithstanding any alleged “conspir[acy]” to 23 prevent him from doing so. See Mot. at 5. 24 Accordingly, plaintiff’s fifth Motion for Appointment of Counsel is DENIED. 25 C. Motion to Alert the F.B.I. 26 Plaintiff also moves the Court to “alert the FBI of located evidence of corruption at 27 RJD.” Mot. at 1, 6. Plaintiff cites no authority for this unusual request. In any event, the 28 /// 1 Court does not find that there is good cause to enlist the F.B.I. in investigating plaintiff’s 2 allegations of corruption in these proceedings. 3 Accordingly, plaintiff’s Motion to Alert the F.B.I. is DENIED. 4 D. Requests for Admission 5 As noted, included in plaintiff’s Motion are four Requests for Admission (“RFAs”) 6 directed to defendant Chau. Mot. at 4. There is no motion or other matter currently pending 7 on the Court’s docket to which these Requests for Admission pertain. Plaintiff is 8 admonished that pursuant to Civil Local Rule 36.1.c., unless otherwise requested by the 9 Court, discovery is not to be lodged or filed unless it pertains to a pending motion or other 10 request for relief. CivLR 36.1.c. 11 Furthermore, to the extent plaintiff’s inclusion of the RFAs in the Motion can be 12 construed as a Motion to Compel defendants’ responses thereto, such Motion to Compel is 13 premature. It does not appear to the Court that these RFAs have been served on defendant 14 Chau other than being included in the Motion; nor is there any indication that defendant 15 has had the opportunity to object, respond, or meet and confer with plaintiff regarding these 16 discovery requests. See Chambers’ Rules and Pretrial Procedures for the Honorable Karen 17 S. Crawford (“Chambers’ Rules”), § V.III.A. (requiring parties to meet and confer before 18 raising discovery disputes). Moreover, the Court has not yet convened the Early Neutral 19 Evaluation and Case Management Conference (“ENE/CMC”) in this matter, both of which 20 are scheduled to take place on March 30, 2021. While the parties are free to exchange 21 discovery by mutual agreement before that time, consistent with Federal Rule of Civil 22 Procedure 16 and this District’s Local Rules, the Court will not entertain any discovery 23 motion before the ENE/CMC. See Fed. R. Civ. P. 16; CivLR 16.1.d. 24 For these reasons, and to the extent plaintiff seeks intervention or relief from the 25 Court’s action with respect to the RFAs, plaintiff’s Motion is DENIED WITHOUT 26 PREJUDICE. Going forward, should any discovery disputes arise which require the 27 Court’s involvement, the Court expects all parties to comply with the Federal Rules of 28 Civil Procedure, the District’s Local Rules, and this Court’s Chambers’ Rules. l ORDER 2 For the reasons stated above, plaintiff's Motion to Appoint Counsel and Motion to 3 || Alert the F.B.I. [Doc. Nos. 24, 25] are DENIED. There is no pending motion to which the 4 ||Request for Admission [Doc. No. 27] are relevant, and to the extent plaintiff seeks relief 5 || with respect to the Requests for Admission, such relief is DENIED WITHOUT 6 || PREJUDICE. 7 || IT IS SO ORDERED. 8 || Dated: March 5, 2021 te ae ) 9 Mfficae _———_ 10 Hori. Karen S. Crawford United States Magistrate Judge
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