Stevenson v. Beard

Opinion

1 2 | .

5 7 . .

8 UNITED STATES DISTRICT COURT

9 . SOUTHERN DISTRICT OF CALIFORNIA 0 .

11 || STEVIE J. STEVENSON, Case No.: 3:16-cv-3079-TWR-RBM _— Plaintiff, ORDER DENYING MOTION FOR 13 || V. | APPOINTMENT OF COUNSEL 14 || JEFFREY BEARD, Ph.D., et al, □ is Defendants.| [Doc. 131] 16 . 7 I. INTRODUCTION ©

18 Stevie J. Stevenson (“Plaintiff”), a prisoner proceeding pro se and in forma pauperis, 19 || filed a “Motion for Appointment of Counsel or Appointment of Investigator to Assist 20 ||Plaintiff....” (Doc. 131.) Liberally construing this filing, it is a Motion for Appointment 21 || of Counsel (“Motion”). (See Doc. 131 at 1, 6-7); see Blaisdell v. Frappiea, 729 F.3d 1237, 22 || 1241 (9th Cir. 2013) (courts liberally construe pro se litigants? filings, relieving them from 23 strict application of procedural rules and demands). 24 For the reasons discussed below, Plaintiffs Motion is DENIED without prejudice. sip 26 27 \\/// . 28 . 1 □

1 Il. PROCEDURAL HISTORY 2 This case has a lengthy and complicated procedural history. This Order addresses 3 || filings relevant to the instant Motion. 4 A. First Amended Complaint & Motion to Dismiss 5 On June 8, 2017, Plaintiff filed a First Amended Complaint (“FAC”) asserting the 6 || following causes of action: (1) the due process rights of Plaintiff and other inmates housed 7 \{in California state prisons were violated as a result of the California Department of 8 ||Corrections & Rehabilitation’s amendment of statutes governing law libraries in prisons; 9 Plaintiff's rights were violated when Centinela staff opened his legal mail outside of 10 || his presence; (3) Plaintiff was subject to retaliation by Centinela prison staff in that he was 11 allowed to mail outgoing documents to courts, attorneys, or the California Innocence 12 Project; (4) Plaintiff's rights have been violated, because Centinela’s litigation coordinator 13 withheld from Plaintiff an audio CD recording of an allegedly exculpatory witness 14 statement; and (5) altogether, the cumulative effect of these deprivations have effectively 15 || denied Plaintiff the right to access the courts to present a “non-frivolous claim.” (Docs. 8, 16

17 On January 18, 2018, all named Defendants filed a Motion to Dismiss portions of 18 ||the FAC (“MTD”). (Doc. 32.) Defendants moved to dismiss Claims One and Five as 19 || barred by res judicata/claim preclusion. (Id. at 3-5.) Defendants contended Claim Five 20 should be treated the same as Claim One, as it expanded upon Claim One’s allegations. 21 at 3 n.1.) Defendants also sought dismissal of Defendants Jeffrey Beard, Ph.D., R. 22 ||Madden, and S. Kernan. (Doc. 32 at 3-7.) . 23 B. Court Orders on Defendants’ MTD and Plaintiff's Motion for Reconsideration 24 On April 26, 2018, Magistrate Judge Peter C. Lewis issued a Report and 25 || Recommendation on the MTD (“R&R”) recommending dismissal of Claim One but denial 26 ||of the MTD as to Claim Five. (Doc. 47.) The R&R also recommended denying the MTD 27 to the dismissal of Defendants J. Beard, Ph.D. and R. Madden. (Doc. Jd. at 12, 16.) But

1 || the R&R recommended granting the MTD as to the dismissal of Defendant S. Kernan. (Id. 2 16.) 3 On July 11, 2018, the Court adopted the R&R in full and granted Plaintiff leave to 4 || file a Second Amended Complaint (“SAC”). (Doc. 61.) In response, the Plaintiff filed a 5 ||Motion for Reconsideration and appealed to the Ninth Circuit Court of Appeals. (Docs. 6 ||63-64.) The Ninth Circuit dismissed the appeal and the Court denied Plaintiff's Motion 7 ||for Reconsideration. (Docs. 81, 89.) Plaintiff appealed the denial of the Motion for 8 || Reconsideration, and the Ninth Circuit dismissed that appeal. (Docs. 91, 104-105.) 9 After resolution of the foregoing appeal, on March 16, 2020, the Court issued an 10 Order granting Plaintiff leave to file a SAC up through April 30, 2020. (Doc. 106 at 12.) 11 May 12, 2020, Plaintiff filed a notice stating Plaintiffs intention to proceed with the 12 ||claims presented in the FAC, therefore on May 29, 2020, the Court directed Defendants to 13 || answer the remaining claims in the FAC. (Docs. 108-109.) On June 19, 2020, Defendants 14 Telles, R. Madden, J. Beard, Ph.D., C. Bell, C. Walker, and P. Couch filed an Answer 15 the FAC. (Doc. 110.) On July 7, 2020, Patricia Couch became a named Defendant in 16 |i place of “M[alilroom staff PC.” (Doc. 113 at 4; see Doc. 8 at 2.) 17 C. — Instant Motion 18 The instant Motion, accepted nunc pro tunc to November 20, 2020, seeks an order 19 appointing counsel for Plaintiff in this case. (Doc. 131 at 1, 6-7.) Plaintiff contends that 20 ||appointment of counsel is necessary for several reasons. (Id. at 1-7.) In relevant part, 21 || Plaintiff alleges he cannot afford to hire independent counsel and imprisonment has greatly 22 ||limited his ability to litigate this case. (/d. at 1.) Plaintiff also alleges that appointed 23 ||counsel will assist him in gathering evidence for discovery, writing briefs, and trying the 24 case. (See id. at 1-7.) In addition to the request for appointment of counsel, Plaintiff also 25 ||raises several additional arguments regarding Defendants’ alleged failure to respond to 26 || discovery and Plaintiff's need to retain several expert witnesses. (/d. at 4-6.) Because 27 ||Plaintiff has not filed either a motion to compel or a motion to appoint experts, these 28 ||requests will be solely addressed in the context of the Motion for Appointment of Counsel. 3 □

ii} IV. DISCUSSION 2 Generally, a person has no right to court-appointed counsel in civil actions. Palmer 3 ||v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (finding no abuse of discretion in denying 4 appointment of counsel in civil rights action, citing Storseth v. Spellman, 654 F.2d 1349, 5 || 1353 (9th Cir. 1981)). But under 28 U.S.C. § 1915(e)(1), a court may appoint counsel for 6 || indigent civil litigants under “exceptional circumstances.” Palmer, 560 F.3d at 970 (citing 7 ||Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub 8 ||nom. Gerber v. Agyeman, 545 U.S. 1128 (2005)). In determining whether “exceptional 9 || circumstances” exist, the court must consider “the likelihood of success on the merits as 10 || well as the ability of the petitioner to articulate his claims pro se in light of the complexity 11 ||of the legal issues involved.” Palmer, 560 F.3d at 970 (citing Weygandt v. Look, 718 F.2d 12 954 (9th Cir. 1983)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 13 || Neither of these considerations is dispositive but instead must be viewed together. Terrell, 14 |}935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 15 Only “rarely” will a federal court finda case to be so complex that it is appropriate 16 appoint counsel for a civil litigant who faces no loss of liberty in the controversy at hand. 17 || See Dotson v. Doctor, No. 1:14-CV-00093-LJO-SKO (PC), 2014 WL 2208090, at *1 n.1 18 ||(E.D. Cal. May 27, 2014) (“[c]ounsel is appointed in civil cases only rarely, if exceptional 19 || circumstances exist”); United States v. Melluzzo, No. CV-09-8197-PCT-MHM, 2010 WL 20 || 1779644, at¥2-3 (D. Ariz. May 3, 2010); see also Schwartzmiller v. Roberts, No. 93-1276- 21 ||FR, 1994 WL 48967, at *2 n.1 (D. Or. Feb. 11, 1994). This includes civil rights litigation 22 ||involving due process, retaliation, and access to the courts claims. See Woodroffe v. 23 || Kulongoski, 745 F. App’x 728, 729-30 (9th Cir. 2018) (affirming denial of appoint of 24 counsel for pro se state prisoner, because Plaintiffs due process and retaliation claims did 25 ||not present exceptional circumstances); see also Quair v. Gertz, 585 F. App’x 594, 595 26 Cir. 2014) (upholding denial of appointment of counsel for pro se state prisoner, in 27 ||part, where Plaintiffs access to the courts and retaliation claims did not demonstrate 28 exceptional circumstances). . .

1 Here, there are no “exceptional circumstances” to justify appointment of counsel at 2 ||this time. Although this case was filed in 2016, litigation is in its early stages given the 3 lengthy initial pleading stage and various appeals. See supra p. 2-3. The parties are still 4 || engaged in discovery, and the pretrial motions cutoff date has not yet passed. (Doc. 114 at 5 || 1-3.) At this early stage of litigation, it is difficult to determine Plaintiff's likelihood of 6 ||success on the merits of his claims. To the extent this case proceeds beyond summary 7 || judgment, the Court will be in a better position to make such a deterimination. 8 As in Woodroffe and Quair, Plaintiffs due process, retaliation, and access to courts 9 |iclaims are not sufficiently complex to warrant appointment of counsel. See Woodroffe, 10 F. App’x at 729-30; see also Quair, 585 F. App’x at 595. Plaintiff has not 11 ||demonstrated an inability to present his claims pro se. Rather, Plaintiff appears to grasp 12 || and articulate the issues and facts of his case well enough to have survived initial screening 13 ||required 28 U.S.C. §§ 1915(e)(2) and 1915A. (See Doc. 13 at 4-6.) Plaintiff has 14 || demonstrated literacy and an ability to communicate through pleadings and motions. See 15 supra p. 2-3. For example, Plaintiff has filed a wide variety of motions with exhibits and 16 || attachments as well as filed two appeals with the Ninth Circuit. (See generally Docs. 5, 7, 17 12, 35, 37, 64, 91, 95, 125, 131.) Moreover, Plaintiff has propounded several sets of 18 discovery to Defendants.' (Doc. 131 at 4-6.) Furthermore, Plaintiff identified six possible 19 || experts for trial such that he appears to understand expert discovery. (/d. at 4-6.) Plaintiff 20 || attached signed declarations from these identified experts, but he requests for appointed 21 ||counsel to interview these witnesses. (/d. at 4, 7.) But by Plaintiff's own admission, he 22 try this case without the assistance of counsel: “Plaintiff is of the belief that he can try 23 case in pro-se, but the appointment of an . . . attorney just to obtain information will 24 jj 2 ' Plaintiff vaguely alleges Defendants have not, as of November 6, 2020, responded to Plaintiff's 26 || requests for production of documents, interrogatories, nor answered his requests for admissions. (Doc. 131 at 6.) He also alleges Defendant Madden has not responded to Plaintiff's interrogatories, Plaintiffs 27 requests for production of documents, nor Plaintiffs request for inspection. (Id. at 4.) The Court will 28 not consider any discovery dispute absent a showing that the parties have met-and-conferred and a properly-filed motion to compel. See CivLR 26.1(a).

1 || greatly assist him present his case to a jury during trial.” (Doc. 131 at 7 (emphasis added).) 2 ||Such a justification fails to demonstrate an exceptional circumstance. See Palmer, 560 3 ||F.3d at 970. 4 In considering the nature of Plaintiffs claims together with Plaintiff's ability to 5 || articulate the same, the undersigned does not find exceptional circumstances exist to justify 6 appointment of counsel at this time. If this case proceeds beyond summary judgment, the 7 Court may consider appointment of trial counsel.

8 VW. CONCLUSION © 9 For the foregoing reasons, Plaintiff's Motion is DENIED, without prejudice. 10 || DATE: December 7 , 2020 □ nf D {ON. RUTH BERMUDEZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE 13 14 15 16 . 17 18 . 19 20 □

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