1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALFRED DAVID SERNA, Case No.: 22-CV-841 JLS (DEB) CDCR #E-25219, 12 ORDER DENYING MOTION FOR Plaintiff, 13 APPOINTMENT OF COUNSEL
14 (ECF No. 21) v. 15
16 17 MADDEN, Warden; C/O C. LOPEZ; C/O FRANZ; and C/O ESCOBAR, 18 Defendants. 19
20 Presently before the Court is Plaintiff Alfred David Serna’s (“Plaintiff” or “Serna”) 21 Motion for Appointment of Counsel (“Mot.,” ECF No. 21). Having carefully considered 22 Plaintiff’s Motion and the law, the Court DENIES Plaintiff’s Motion for the reasons that 23 follow. 24 BACKGROUND 25 On June 6, 2022, Serna, currently incarcerated at R.J. Donovan Correctional Facility 26 (“RJD”) and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 27 naming Raymond Madden, Warden of RJD, and Correctional Officers Lopez, Franz, and 28 1 civil filing fee required by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed in 2 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2 (“IFP Mot.”). 3 He also moved to appoint counsel. See ECF No. 3 (“1st Counsel Mot.”). 4 On August 12, 2022, the Court granted Serna’s IFP Motion, dismissed his claims 5 against Defendant Madden for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) 6 and 1915A(b), and denied without prejudice his First Counsel Motion. See ECF No. 6. In 7 denying the First Counsel Motion, the Court noted that “nothing in Serna’s Complaint 8 suggests he is incapable of articulating the factual basis for his Eighth Amendment claims, 9 which appear ‘relatively straightforward’”; indeed, the Court “found, based on its initial 10 screening of Serna’s Complaint . . . , that he has stated a plausible claim for relief.” Id. at 11 8 (citations omitted). Further, the Court determined that it was “too soon to tell[] whether 12 he is likely to succeed on the merits,” given Serna’s failure to provide any evidence to 13 support his claims. Id. at 8–9. The Court gave Serna the option of (i) proceeding with his 14 Eighth Amendment claims against Defendants Lopez, Franz, and Escobar only; or (ii) 15 filing an Amended Complaint that cured the pleading deficiencies noted in the Order. See 16 id. at 10. On August 24, 2022, Serna filed a document entitled “Request for Judicial 17 Notice” in which he informed the Court of his intention to proceed with his Eighth 18 Amendment claims against Defendants Lopez, Franz, and Escobar only. See ECF No. 7. 19 Accordingly, the Court dismissed Madden as a defendant in this action and directed the 20 U.S. Marshal to serve the remaining Defendants. See ECF No. 8. On November 29, 2022, 21 the remaining Defendants answered the Complaint. See ECF No. 15. The case is presently 22 in discovery. See ECF No. 16 (Scheduling Order). 23 On February 22, 2023, Plaintiff filed the instant Motion, which asks the Court to 24 “Reconsider[] [Serna’s] request for Appointment of Counsel.” Mot. at 2.1 25 / / / 26 27 28 1 In citing to the Motion, the Court refers to the blue numbers stamped in the upper righthand corner of 1 MOTION FOR RECONSIDERATION 2 To the extent Plaintiff seeks reconsideration of the Court’s denial of his First 3 Counsel Motion, the Motion is untimely. Plaintiff’s June 6, 2022 Motion to Appoint 4 Counsel was denied by this Court on August 12, 2022. See ECF Nos. 3 & 6. Pursuant to 5 Civil Local Rule 7.1(i)(2), “[e]xcept as may be allowed under Rules 59 and 60 of the 6 Federal Rules of Civil Procedure, any motion or application for reconsideration must be 7 filed within twenty-eight (28) days after the entry of the ruling, order or judgment sought 8 to be reconsidered.” Accordingly, Plaintiff’s deadline to move for reconsideration of the 9 denial of his First Counsel Motion was September 9, 2022. Plaintiff failed to file his 10 motion, however, until more than five months after that deadline had passed. Accordingly, 11 the Court DENIES Plaintiff’s Motion as untimely. See, e.g., Quechan Indian Tribe v. 12 United States, Civil No. 02cv1096 JAH (AJB), 2010 WL 3895055, at *3 (S.D. Cal. Sept. 13 29, 2010) (denying reconsideration motion as untimely). 14 RENEWED MOTION TO APPOINT COUNSEL 15 In light of Plaintiff’s pro se status, however, the Court, in its discretion, construes 16 his Motion as a renewed motion to appoint counsel and decides the Motion on its merits. 17 See, e.g., Andrews v. Knowles, No. 10cv2109-BEN (BLM), 2011 WL 2149619, at *1 (S.D. 18 Cal. June 1, 2011) (considering untimely motion for reconsideration on the merits given 19 the plaintiff’s pro se prisoner status). 20 I. Legal Standard 21 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Social 22 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 23 Rather, the appointment of counsel in a civil case “is a privilege and not a right.” U. S. ex 24 rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citing Wright v. Rhay, 310 25 F.2d 687 (9th Cir. 1962)). And, while 28 U.S.C. § 1915(e)(1) grants the district court 26 limited discretion to “request” that an attorney represent an indigent civil litigant in 27 “exceptional circumstances,” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th 28 Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), “[a] finding of 1 exceptional circumstances requires an evaluation of both the ‘likelihood of success on the 2 merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity 3 of the legal issues involved.’ Neither of these issues is dispositive and both must be viewed 4 together before reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn v. 5 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 6 II. Analysis 7 Here, Plaintiff asserts he is unable to afford counsel to represent him in this matter, 8 Mot. at 2, and he provides correspondence demonstrating his unsuccessful efforts thus far 9 to secure pro bono counsel on his behalf, see id. at 4–12. He further argues that “[his] 10 imprisonment will greatly limit his Ability to Litigate,” that “The issues involved in this 11 case are Complex,” and that “Plaintiff has Limited access to [the] Law Library and Little 12 Knowledge of the law.” Id. at 2. He further notes that “[he] is affraid [sic] he might be 13 asked to say things that maybe [sic] used against him as if he Committed a Crime.” Id. 14 Plaintiff has successfully navigated the Court system thus far. His initial Complaint 15 largely survived screening, indicating that he at least has a base understanding of and ability 16 to litigate this action. Nor are the legal issues raised by this action, in which Plaintiff is 17 asserting a single Eighth Amendment failure-to-protect claim against three correctional 18 officers, particularly complex.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALFRED DAVID SERNA, Case No.: 22-CV-841 JLS (DEB) CDCR #E-25219, 12 ORDER DENYING MOTION FOR Plaintiff, 13 APPOINTMENT OF COUNSEL
14 (ECF No. 21) v. 15
16 17 MADDEN, Warden; C/O C. LOPEZ; C/O FRANZ; and C/O ESCOBAR, 18 Defendants. 19
20 Presently before the Court is Plaintiff Alfred David Serna’s (“Plaintiff” or “Serna”) 21 Motion for Appointment of Counsel (“Mot.,” ECF No. 21). Having carefully considered 22 Plaintiff’s Motion and the law, the Court DENIES Plaintiff’s Motion for the reasons that 23 follow. 24 BACKGROUND 25 On June 6, 2022, Serna, currently incarcerated at R.J. Donovan Correctional Facility 26 (“RJD”) and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 27 naming Raymond Madden, Warden of RJD, and Correctional Officers Lopez, Franz, and 28 1 civil filing fee required by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed in 2 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2 (“IFP Mot.”). 3 He also moved to appoint counsel. See ECF No. 3 (“1st Counsel Mot.”). 4 On August 12, 2022, the Court granted Serna’s IFP Motion, dismissed his claims 5 against Defendant Madden for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) 6 and 1915A(b), and denied without prejudice his First Counsel Motion. See ECF No. 6. In 7 denying the First Counsel Motion, the Court noted that “nothing in Serna’s Complaint 8 suggests he is incapable of articulating the factual basis for his Eighth Amendment claims, 9 which appear ‘relatively straightforward’”; indeed, the Court “found, based on its initial 10 screening of Serna’s Complaint . . . , that he has stated a plausible claim for relief.” Id. at 11 8 (citations omitted). Further, the Court determined that it was “too soon to tell[] whether 12 he is likely to succeed on the merits,” given Serna’s failure to provide any evidence to 13 support his claims. Id. at 8–9. The Court gave Serna the option of (i) proceeding with his 14 Eighth Amendment claims against Defendants Lopez, Franz, and Escobar only; or (ii) 15 filing an Amended Complaint that cured the pleading deficiencies noted in the Order. See 16 id. at 10. On August 24, 2022, Serna filed a document entitled “Request for Judicial 17 Notice” in which he informed the Court of his intention to proceed with his Eighth 18 Amendment claims against Defendants Lopez, Franz, and Escobar only. See ECF No. 7. 19 Accordingly, the Court dismissed Madden as a defendant in this action and directed the 20 U.S. Marshal to serve the remaining Defendants. See ECF No. 8. On November 29, 2022, 21 the remaining Defendants answered the Complaint. See ECF No. 15. The case is presently 22 in discovery. See ECF No. 16 (Scheduling Order). 23 On February 22, 2023, Plaintiff filed the instant Motion, which asks the Court to 24 “Reconsider[] [Serna’s] request for Appointment of Counsel.” Mot. at 2.1 25 / / / 26 27 28 1 In citing to the Motion, the Court refers to the blue numbers stamped in the upper righthand corner of 1 MOTION FOR RECONSIDERATION 2 To the extent Plaintiff seeks reconsideration of the Court’s denial of his First 3 Counsel Motion, the Motion is untimely. Plaintiff’s June 6, 2022 Motion to Appoint 4 Counsel was denied by this Court on August 12, 2022. See ECF Nos. 3 & 6. Pursuant to 5 Civil Local Rule 7.1(i)(2), “[e]xcept as may be allowed under Rules 59 and 60 of the 6 Federal Rules of Civil Procedure, any motion or application for reconsideration must be 7 filed within twenty-eight (28) days after the entry of the ruling, order or judgment sought 8 to be reconsidered.” Accordingly, Plaintiff’s deadline to move for reconsideration of the 9 denial of his First Counsel Motion was September 9, 2022. Plaintiff failed to file his 10 motion, however, until more than five months after that deadline had passed. Accordingly, 11 the Court DENIES Plaintiff’s Motion as untimely. See, e.g., Quechan Indian Tribe v. 12 United States, Civil No. 02cv1096 JAH (AJB), 2010 WL 3895055, at *3 (S.D. Cal. Sept. 13 29, 2010) (denying reconsideration motion as untimely). 14 RENEWED MOTION TO APPOINT COUNSEL 15 In light of Plaintiff’s pro se status, however, the Court, in its discretion, construes 16 his Motion as a renewed motion to appoint counsel and decides the Motion on its merits. 17 See, e.g., Andrews v. Knowles, No. 10cv2109-BEN (BLM), 2011 WL 2149619, at *1 (S.D. 18 Cal. June 1, 2011) (considering untimely motion for reconsideration on the merits given 19 the plaintiff’s pro se prisoner status). 20 I. Legal Standard 21 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Social 22 Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 23 Rather, the appointment of counsel in a civil case “is a privilege and not a right.” U. S. ex 24 rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citing Wright v. Rhay, 310 25 F.2d 687 (9th Cir. 1962)). And, while 28 U.S.C. § 1915(e)(1) grants the district court 26 limited discretion to “request” that an attorney represent an indigent civil litigant in 27 “exceptional circumstances,” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th 28 Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), “[a] finding of 1 exceptional circumstances requires an evaluation of both the ‘likelihood of success on the 2 merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity 3 of the legal issues involved.’ Neither of these issues is dispositive and both must be viewed 4 together before reaching a decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn v. 5 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 6 II. Analysis 7 Here, Plaintiff asserts he is unable to afford counsel to represent him in this matter, 8 Mot. at 2, and he provides correspondence demonstrating his unsuccessful efforts thus far 9 to secure pro bono counsel on his behalf, see id. at 4–12. He further argues that “[his] 10 imprisonment will greatly limit his Ability to Litigate,” that “The issues involved in this 11 case are Complex,” and that “Plaintiff has Limited access to [the] Law Library and Little 12 Knowledge of the law.” Id. at 2. He further notes that “[he] is affraid [sic] he might be 13 asked to say things that maybe [sic] used against him as if he Committed a Crime.” Id. 14 Plaintiff has successfully navigated the Court system thus far. His initial Complaint 15 largely survived screening, indicating that he at least has a base understanding of and ability 16 to litigate this action. Nor are the legal issues raised by this action, in which Plaintiff is 17 asserting a single Eighth Amendment failure-to-protect claim against three correctional 18 officers, particularly complex. Ultimately, while the Court sympathizes with the 19 difficulties Plaintiff faces as a pro se prisoner, limited access to the law library and a general 20 lack of legal expertise do not rise to the level of “exceptional circumstances” for purposes 21 of a motion to appoint counsel. See, e.g., Freeman v. Ducey, No. CV-20-00287-TUC-RM, 22 2021 WL 3165405, at *1 (D. Ariz. June 28, 2021) (noting that “typical difficulties 23 experienced by pro se prisoner litigants, such as a lack of financial resources, a lack of 24 legal training, [and] limited access to legal resources, . . . do not establish exceptional 25 circumstances”) (citations omitted). 26 Finally, while the Court has previously determined that Plaintiff’s “allegations are 27 sufficient to plausibly allege an Eighth Amendment failure-to-protect claim against [the 28 remaining Defendants],” ECF No. 6 at 6–7 (citations omitted), “it is too early for the Court 1 || to determine [Plaintiff]’s likelihood of success on the merits,” Clack v. San Diego Sheriffs 2 Dep't, No. O8CV0624 IEG (RBB), 2009 WL 413030, at *2 (S.D. Cal. Feb. 18, 2009) 3 ||(noting that court was unable to conclude that the plaintiff was likely to succeed 4 ||“[a]lthough Plaintiffs allegations are sufficient to state a claim for relief’). At this early 5 stage in the proceedings, with discovery still underway, the Court simply does not have 6 || enough facts and evidence to determine whether Plaintiff has a strong likelihood of success 7 the merits such that appointment of counsel is warranted. 8 In sum, Plaintiff has adequately litigated the case thus far, the case is still in its 9 ||infancy, and the Court is currently unable to determine how likely Plaintiff is to succeed 10 || on the merits of his claim. For these reasons, neither the interests of justice nor exceptional 11 |}circumstances warrant appointment of counsel at this time. Accordingly, the Court 12 || DENIES Plaintiff's Motion. Should circumstances change, Plaintiff may be permitted to 13 || file another motion for appointment of counsel. 14 CONCLUSION 15 In light of the foregoing, the Court DENIES Plaintiff's Motion (ECF No. 21). 16 IT IS SO ORDERED. 17 || Dated: February 28, 2023 (een 18 on. Janis L. Sammartino United States District Judge 19 20 21 22 23 24 25 26 27 28