5 6 7 10 11 ALFRED DAVID SERNA, Case No. 22-cv-00841-JES-DEB 12 Plaintiff, ORDER: 13 v. (1) GRANTING IN PART 14 PLAINTIFF’S MOTION TO CONTINUE THE DEADLINE 15 MADDEN, Warden, et al., TO OPPOSE DEFENDANTS’ MOTION FOR SUMMARY 16 Defendants. JUDGMENT; AND 17 (2) DENYING PLAINTIFF’S MOTION FOR APPOINTMENT 19 20 [DKT. NO. 45] 21
22 23 Before the Court is pro se Plaintiff Alfred Serna’s Motion Requesting Another 24 Continuance of Defendants’ Motion for Summary Judgment and Appointment of 25 Counsel (“Motion”). Dkt. No. 45. Plaintiff requests: (1) an extension of Plaintiff’s 26 deadline to oppose Defendants’ Motion for Summary Judgment; and (2) appointment 27 of counsel. Id. 28 1 For the reasons discussed below, the Plaintiff’s Motion is GRANTED IN
2 PART and DENIED IN PART.
4 On June 6, 2022, Plaintiff filed a Motion to Appoint Counsel, which District
5 Judge Janis L. Sammartino denied without prejudice. Dkt. Nos. 3, 6. On February 6 22, 2023, Plaintiff filed another Motion for Appointment of Counsel. Dkt. No. 21. 7 Judge Sammartino denied Plaintiff’s second motion and allowed Plaintiff to file 8 another request “[s]hould circumstances change.” Dkt. No. 27 at 5. 9 On April 3, 2023, Defendant filed a Motion for Summary Judgment (“MSJ”). 10 Dkt. No. 31. The Court notified Plaintiff that he may file any opposition to 11 Defendants’ MSJ on or before May 5, 2023. Dkt. No. 35. On April 12, 2023, Plaintiff 12 requested extensions of the fact discovery cutoff and the deadline to oppose 13 Defendants’ MSJ by 90 days. Dkt. No. 38 at 1–2. The Court granted Plaintiff’s 14 requested extensions, continued the fact discovery cutoff to June 9, 2023, and 15 extended Plaintiff’s deadline to oppose Defendants’ MSJ to August 4, 2023. Dkt. No. 16 42. 17 Plaintiff now requests: (1) an additional 90-day extension to oppose 18 Defendants’ motion for summary judgment, and (2) appointment of counsel. Dkt. 19 No. 46. The Court addresses each in turn. 20 II. EXTENDING THE OPPOSITION DEADLINE 21 A request to modify the scheduling order under Rule 16 requires a showing of 22 good cause. Fed. R. Civ. P. 16 (b)(4). “Rule 16(b)’s ‘good cause’ standard primarily 23 considers the diligence of the party seeking the amendment.” Johnson v. Mammoth 24 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 25 Plaintiff requests a “[c]ontinuance of his opposition to Defendants’ Motion for 26 Summary Judgment to a date not less than 90 days after August 4, 2023.” Dkt. No. 27 45 at 5. Plaintiff alleges he was placed in administrative segregation for thirty days 28 1 on April 29, 2023, “without his legal material to go forward with his case.” Id. at 2.
2 Plaintiff claims he was transferred to Kern Valley State Prison on May 29, 2023, and
3 has remained in administrative segregation at the new facility without his legal papers
4 or access to the law library. Id. at 2–3.
5 While the Court finds good cause exists for an extension, the additional 90 days 6 Plaintiff seeks (after the Court has already granted a 90-day extension) is too long of 7 an extension. The Court therefore grants Plaintiff an additional 30 days, until 8 September 5, 2023, to file his opposition. Defendant may file a reply on or before 9 September 19, 2023. 10 III. APPOINTMENT OF COUNSEL 11 An indigent’s right to appointed counsel exists “only where the litigant may lose 12 his physical liberty if he loses the litigation.” Lassiter v. Dep’t of Soc. Servs. of 13 Durham Cty., N. C., 452 U.S. 18, 25 (1981). District Courts generally lack authority 14 to require counsel to represent indigent prisoners in Section 1983 cases. Mallard v. 15 U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 298–309 (1989). Appointing 16 counsel is reserved for exceptional circumstances. Terrell v. Brewer, 935 F.2d 1015, 17 1017 (9th Cir. 1991). When assessing whether exceptional circumstances exist, the 18 Court must undergo “an evaluation of both ‘the likelihood of success on the merits 19 [and] the ability of the petitioner to articulate his claims pro se in light of the 20 complexity of the legal issues involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 21 1331 (9th Cir. 1986). Courts must consider both factors, and neither is individually 22 dispositive. 23 Plaintiff asserts the Court should appoint counsel because his “ability to litigate 24 is low and requires a lot of research in which plaintiff is in [sic] Administrative 25 Segregation to [sic] no access to any Law Library . . . .” Id. at 3–4. Plaintiff further 26 claims “[t]his case will need a person to present evidence that [he is] not able to get” 27 and “a lawyer on the outside to cross-examine witnesses at a higher level.” Id. at 4. 28 1 Plaintiff does not address whether there exists a likelihood of success on the
2 merits, and the Court has no basis to evaluate the likelihood of success.
3 Moreover, the Court cannot conclude Plaintiff lacks the ability to articulate and
4 prosecute his claims. He has demonstrated the ability to articulate the essential facts
5 supporting his Eighth Amendment claims, which appear relatively straightforward 6 and uncomplicated. See Dkt. No. 1 at 5 (Plaintiff alleges that as a “direct and 7 foreseeable result” of Defendants’ Eight Amendment violations, he “has suffered, is 8 suffering and will continue to suffer injuries in the form of pain and suffering, shame, 9 humiliation, degradation, emotional distress, embarrassment, mental distress and 10 other injuries”). Plaintiff has prepared and filed: (1) a complaint that survived 28 11 U.S.C. § 1915A(b) screening (Dkt. Nos. 1, 6); (2) a motion to proceed in forma 12 pauperis which the Court granted (Dkt. Nos. 2, 6); (3) two previous motions to 13 appoint counsel (Dkt. Nos. 3, 21); (4) a previous request to amend the scheduling 14 order (Dkt. No. 38); and (5) this Motion (Dkt. No. 45). Plaintiff has also propounded 15 and responded to discovery requests. Dkt. No. 38 at 1–2. These filings demonstrate 16 that Plaintiff is able to satisfactorily articulate his claims and navigate civil procedure. 17 See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (finding exceptional 18 circumstances were not satisfied where the District Court observed Plaintiff “was 19 well-organized, made clear points, and presented the evidence effectively”). 20 Finally, pro se litigants are afforded some leniency to compensate for their lack 21 of legal training. “In civil rights cases where the plaintiff appears pro se, the court 22 must construe the pleadings liberally and must afford plaintiff the benefit of any 23 doubt.” Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal citation 24 omitted). This leniency applies to motions. Bernhardt v. Los Angeles Cty., 339 F.3d 25 920, 925 (9th Cir. 2003). The Court will take Plaintiff’s pro se status into 26 consideration when reviewing his filings. The Court, therefore, DENIES Plaintiff’s 27 request for appointment of counsel. 28 I IV.
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5 6 7 10 11 ALFRED DAVID SERNA, Case No. 22-cv-00841-JES-DEB 12 Plaintiff, ORDER: 13 v. (1) GRANTING IN PART 14 PLAINTIFF’S MOTION TO CONTINUE THE DEADLINE 15 MADDEN, Warden, et al., TO OPPOSE DEFENDANTS’ MOTION FOR SUMMARY 16 Defendants. JUDGMENT; AND 17 (2) DENYING PLAINTIFF’S MOTION FOR APPOINTMENT 19 20 [DKT. NO. 45] 21
22 23 Before the Court is pro se Plaintiff Alfred Serna’s Motion Requesting Another 24 Continuance of Defendants’ Motion for Summary Judgment and Appointment of 25 Counsel (“Motion”). Dkt. No. 45. Plaintiff requests: (1) an extension of Plaintiff’s 26 deadline to oppose Defendants’ Motion for Summary Judgment; and (2) appointment 27 of counsel. Id. 28 1 For the reasons discussed below, the Plaintiff’s Motion is GRANTED IN
2 PART and DENIED IN PART.
4 On June 6, 2022, Plaintiff filed a Motion to Appoint Counsel, which District
5 Judge Janis L. Sammartino denied without prejudice. Dkt. Nos. 3, 6. On February 6 22, 2023, Plaintiff filed another Motion for Appointment of Counsel. Dkt. No. 21. 7 Judge Sammartino denied Plaintiff’s second motion and allowed Plaintiff to file 8 another request “[s]hould circumstances change.” Dkt. No. 27 at 5. 9 On April 3, 2023, Defendant filed a Motion for Summary Judgment (“MSJ”). 10 Dkt. No. 31. The Court notified Plaintiff that he may file any opposition to 11 Defendants’ MSJ on or before May 5, 2023. Dkt. No. 35. On April 12, 2023, Plaintiff 12 requested extensions of the fact discovery cutoff and the deadline to oppose 13 Defendants’ MSJ by 90 days. Dkt. No. 38 at 1–2. The Court granted Plaintiff’s 14 requested extensions, continued the fact discovery cutoff to June 9, 2023, and 15 extended Plaintiff’s deadline to oppose Defendants’ MSJ to August 4, 2023. Dkt. No. 16 42. 17 Plaintiff now requests: (1) an additional 90-day extension to oppose 18 Defendants’ motion for summary judgment, and (2) appointment of counsel. Dkt. 19 No. 46. The Court addresses each in turn. 20 II. EXTENDING THE OPPOSITION DEADLINE 21 A request to modify the scheduling order under Rule 16 requires a showing of 22 good cause. Fed. R. Civ. P. 16 (b)(4). “Rule 16(b)’s ‘good cause’ standard primarily 23 considers the diligence of the party seeking the amendment.” Johnson v. Mammoth 24 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 25 Plaintiff requests a “[c]ontinuance of his opposition to Defendants’ Motion for 26 Summary Judgment to a date not less than 90 days after August 4, 2023.” Dkt. No. 27 45 at 5. Plaintiff alleges he was placed in administrative segregation for thirty days 28 1 on April 29, 2023, “without his legal material to go forward with his case.” Id. at 2.
2 Plaintiff claims he was transferred to Kern Valley State Prison on May 29, 2023, and
3 has remained in administrative segregation at the new facility without his legal papers
4 or access to the law library. Id. at 2–3.
5 While the Court finds good cause exists for an extension, the additional 90 days 6 Plaintiff seeks (after the Court has already granted a 90-day extension) is too long of 7 an extension. The Court therefore grants Plaintiff an additional 30 days, until 8 September 5, 2023, to file his opposition. Defendant may file a reply on or before 9 September 19, 2023. 10 III. APPOINTMENT OF COUNSEL 11 An indigent’s right to appointed counsel exists “only where the litigant may lose 12 his physical liberty if he loses the litigation.” Lassiter v. Dep’t of Soc. Servs. of 13 Durham Cty., N. C., 452 U.S. 18, 25 (1981). District Courts generally lack authority 14 to require counsel to represent indigent prisoners in Section 1983 cases. Mallard v. 15 U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 298–309 (1989). Appointing 16 counsel is reserved for exceptional circumstances. Terrell v. Brewer, 935 F.2d 1015, 17 1017 (9th Cir. 1991). When assessing whether exceptional circumstances exist, the 18 Court must undergo “an evaluation of both ‘the likelihood of success on the merits 19 [and] the ability of the petitioner to articulate his claims pro se in light of the 20 complexity of the legal issues involved.’” Wilborn v. Escalderon, 789 F.2d 1328, 21 1331 (9th Cir. 1986). Courts must consider both factors, and neither is individually 22 dispositive. 23 Plaintiff asserts the Court should appoint counsel because his “ability to litigate 24 is low and requires a lot of research in which plaintiff is in [sic] Administrative 25 Segregation to [sic] no access to any Law Library . . . .” Id. at 3–4. Plaintiff further 26 claims “[t]his case will need a person to present evidence that [he is] not able to get” 27 and “a lawyer on the outside to cross-examine witnesses at a higher level.” Id. at 4. 28 1 Plaintiff does not address whether there exists a likelihood of success on the
2 merits, and the Court has no basis to evaluate the likelihood of success.
3 Moreover, the Court cannot conclude Plaintiff lacks the ability to articulate and
4 prosecute his claims. He has demonstrated the ability to articulate the essential facts
5 supporting his Eighth Amendment claims, which appear relatively straightforward 6 and uncomplicated. See Dkt. No. 1 at 5 (Plaintiff alleges that as a “direct and 7 foreseeable result” of Defendants’ Eight Amendment violations, he “has suffered, is 8 suffering and will continue to suffer injuries in the form of pain and suffering, shame, 9 humiliation, degradation, emotional distress, embarrassment, mental distress and 10 other injuries”). Plaintiff has prepared and filed: (1) a complaint that survived 28 11 U.S.C. § 1915A(b) screening (Dkt. Nos. 1, 6); (2) a motion to proceed in forma 12 pauperis which the Court granted (Dkt. Nos. 2, 6); (3) two previous motions to 13 appoint counsel (Dkt. Nos. 3, 21); (4) a previous request to amend the scheduling 14 order (Dkt. No. 38); and (5) this Motion (Dkt. No. 45). Plaintiff has also propounded 15 and responded to discovery requests. Dkt. No. 38 at 1–2. These filings demonstrate 16 that Plaintiff is able to satisfactorily articulate his claims and navigate civil procedure. 17 See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (finding exceptional 18 circumstances were not satisfied where the District Court observed Plaintiff “was 19 well-organized, made clear points, and presented the evidence effectively”). 20 Finally, pro se litigants are afforded some leniency to compensate for their lack 21 of legal training. “In civil rights cases where the plaintiff appears pro se, the court 22 must construe the pleadings liberally and must afford plaintiff the benefit of any 23 doubt.” Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal citation 24 omitted). This leniency applies to motions. Bernhardt v. Los Angeles Cty., 339 F.3d 25 920, 925 (9th Cir. 2003). The Court will take Plaintiff’s pro se status into 26 consideration when reviewing his filings. The Court, therefore, DENIES Plaintiff’s 27 request for appointment of counsel. 28 I IV. CONCLUSION 2 For the reasons discussed, Plaintiff's Motion is GRANTED IN PART and 3 | DENIED IN PART. Plaintiff may file any opposition or notice of non-opposition to 4 | Defendants’ Motion for Summary Judgment on or before September 5, 2023. 5 | Defendants may file a reply on or before September 19, 2023. Because Plaintiff has © | not demonstrated exceptional circumstances, the Court denies Plaintiff's request for 7 appointment of counsel. 9 ~ . 10 | Dated: July 21, 2023 idGcds] nn 11 Daniel E. Butcher United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28