1 2 3 4 5 6 7 10 Case No.: 20cv891-AJB(BLM) 11 GILBERT ANTHONY TORRES, CDCR #AP-
3210, 12 ORDER DENYING PLAINTIFF’S Plaintiff, MOTION FOR APPOINTMENT OF v. 14 [ECF No. 10] A. JORRIN; E. LARIOS, Correctional Officer; 15 M. MORALES, Correctional Officer; A. LAROCOO, Correctional Officer; J. SANCHEZ, 16 Correctional Officer, 17 Defendants. 18
19 20 On June 25, 2020, Plaintiff, a state prisoner proceeding and , 21 submitted a Motion for Appointment of Counsel that was received on July 17, 2020. ECF Nos. 22 9 and 10; see also ECF No. 7 (order granting motion to proceed ). Having 23 considered Plaintiff’s Motion and the applicable law, the Motion is DENIED for the reasons set 24 forth below. 26 The Constitution provides no right to appointment of counsel in a civil case unless an 27 indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep’t of Soc. 1 discretion to appoint counsel for indigent persons under “exceptional circumstances.” Agyeman 2 v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional 3 circumstances demands at least “an evaluation of the likelihood of the plaintiff’s success on the 4 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity 5 of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 6 1986)). “Neither of these considerations is dispositive and instead must be viewed together.” 7 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 9 In support of his Motion, Plaintiff alleges that (1) his numerous claims are “legally 10 complex” and “will turn on complex mental health and medical questions” thereby requiring 11 extensive discovery, (2) he “is incapable of articulating those claims” due to his “learning 12 disability” and “being developmentally disabled with low cognitive function,” and (3) he may 13 succeed on the merits of his claims with the assistance of counsel. ECF No. 10 at 2-3. These 14 claims “are typical of almost every prisoner civil rights plaintiff and alone” are insufficient 15 to satisfy the “exceptional circumstances” standard required to justify appointment of counsel. 16 Thompson v. Paramo, No. 16CV951-MMA (BGS), 2018 WL 4357993, at *1 (S.D. Cal. Sept. 13, 17 2018); see also Jones v. Kuppinger, 13CV451-WBS (AC), 2015 WL 5522290, at *3-4 (E.D. Cal. 18 Sept. 17, 2015) (“Circumstances common to most prisoners, such as a deficient general 19 education, lack of knowledge of the law, mental illness and disability, do not in themselves 20 establish exceptional circumstances warranting appointment of voluntary civil counsel.”) 21 Thus far, Plaintiff has drafted and submitted several pleadings without the assistance of 22 counsel. See Docket. In addition to the instant Motion, Plaintiff has submitted a Complaint [ECF 23 No. 1], a Motion to Proceed [ECF No. 2], a Prisoner Trust Fund Account 24 Statement [ECF No. 3], a Notice Regarding Complaint [ECF No. 5], and a second Prisoner Trust 25 Fund Account Statement [ECF No. 6]. From the Court’s review of these documents, there is no 26 indication that the issues are overly complex. In his Complaint, Plaintiff alleges two main claims 27 against Defendants: 1) Excessive Force and 2) Stolen Property. See ECF No. 1 at 3-8, 10. 1 ruling that “any remedy he may have lies in state court and his federal claim must be dismissed 2 for failing to state a claim upon which § 1983 relief may be granted.” ECF No. 7 at 7. With only 3 his Excessive Force claim remaining, Plaintiff’s allegations are “relatively straightforward.” 4 Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015). Based on his filings, Plaintiff has 5 demonstrated that, though not formally trained in law, he is capable of grasping and conveying 6 the legal facts and issues involved in his case. See Taa v. Chase Home Fin., 2012 WL 507430, 7 at *2 (N.D. Cal. Feb. 15, 2012) (noting that plaintiffs’ lack of legal training and poverty did not 8 constitute exceptional circumstances, as these are the types of difficulties many other litigants 9 face in proceeding ); Wilborn, 789 F.2d at 1331 (“If all that was required to establish 10 successfully the complexity of the relevant issues was a demonstration of the need for 11 development of further facts, practically all cases would involve complex issues.”); see also 12 LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) (affirming a district court’s denial of request 13 for appointment of counsel where pleadings demonstrated petitioner had “a good understanding 14 of the issues and the ability to present forcefully and coherently his contentions”). 15 Additionally, it is clear that Plaintiff is able to articulate the claims of his case. Plaintiff 16 asserts that due to “his learning disability” and “being developmentally disabled,” “he is unable 17 to draft motions and conduct legal research.” ECF No. 10 at 3. To support his claim, Plaintiff 18 filed a form letter, attached as “Exhibit A” to his Motion, that states that he “was assisted in 19 writing this letter” by a librarian and that Plaintiff “is claiming a disability and requesting a 20 reasonable accommodation under the” Americans with Disabilities Act (“ADA”)1. Id. at 12. In 21 22 1 The letter further states that “Armstrong v. Schwarzenegger and Clark v. California are federal 23 civil rights actions brought pursuant to the” ADA. Id. at 12. The rulings in both Armstrong and Clark required California state prisons to draft and promulgate plans to achieve ADA compliance 24 and to ensure that California prisoners with developmental disabilities were protected from 25 serious injury and discrimination on the basis of their disability. See Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010); see also Clark v. California, 739 F. Supp. 2d 26 1168 (N.D. Cal. 1996). Though Plaintiff’s letter states that he “may be unable to effectively communicate with the court or fully prosecute this action due to [his] claimed disability” [ECF 27 No. 10 at 12], that claim is undermined by Plaintiff’s filings in this case which establish his ability to both communicate with the Court and prosecute this case. Additionally, the letter merely 1 further support, Plaintiff also filed a declaration from another inmate which states that Plaintiff 2 is a participant in the Enhanced Outpatient Program (“EOP”) and Developmentally Disabled 3 Program (“DDP”)2 and that “other prisoners and library staff have been helping” Plaintiff with 4 his case. Id. at 14. 5 Though mental disability may be grounds for appointment of counsel in some cases, there 6 must be substantial evidence of a plaintiff’s incompetence. Thompson, 2018 WL 4357993, at 7 *2; Fletcher v. Quin, No. 15CV2156-GPC (NLS), 2018 WL 840174, at *2 (S.D. Cal. Feb. 13, 2018) 8 (impairment must be “an incapacitating mental disability” and be supported by “substantial 9 evidence of incompetence”). “The court must be able to find a nexus between the mental 10 disorder and the plaintiff’s ability to articulate his claims.” Fletcher, 2018 WL 840174, at *2; see 11 McElroy v. Cox, Civil No. 08-1221-JM (AJB), 2009 WL 4895360 at *2 (E.D. Cal. Dec. 11, 2009). 12 Here, Plaintiff has not established that his learning disabilities are incapacitating, that he is 13 incompetent, or that his learning disability or mental impairment significantly impedes his ability 14 to articulate his claims or litigate his case. West v. Dizon, No. 12CV1293-DAD P, 2014 WL 15 114659, at *4 (E.D. Cal. Jan.
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1 2 3 4 5 6 7 10 Case No.: 20cv891-AJB(BLM) 11 GILBERT ANTHONY TORRES, CDCR #AP-
3210, 12 ORDER DENYING PLAINTIFF’S Plaintiff, MOTION FOR APPOINTMENT OF v. 14 [ECF No. 10] A. JORRIN; E. LARIOS, Correctional Officer; 15 M. MORALES, Correctional Officer; A. LAROCOO, Correctional Officer; J. SANCHEZ, 16 Correctional Officer, 17 Defendants. 18
19 20 On June 25, 2020, Plaintiff, a state prisoner proceeding and , 21 submitted a Motion for Appointment of Counsel that was received on July 17, 2020. ECF Nos. 22 9 and 10; see also ECF No. 7 (order granting motion to proceed ). Having 23 considered Plaintiff’s Motion and the applicable law, the Motion is DENIED for the reasons set 24 forth below. 26 The Constitution provides no right to appointment of counsel in a civil case unless an 27 indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep’t of Soc. 1 discretion to appoint counsel for indigent persons under “exceptional circumstances.” Agyeman 2 v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional 3 circumstances demands at least “an evaluation of the likelihood of the plaintiff’s success on the 4 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity 5 of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 6 1986)). “Neither of these considerations is dispositive and instead must be viewed together.” 7 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 9 In support of his Motion, Plaintiff alleges that (1) his numerous claims are “legally 10 complex” and “will turn on complex mental health and medical questions” thereby requiring 11 extensive discovery, (2) he “is incapable of articulating those claims” due to his “learning 12 disability” and “being developmentally disabled with low cognitive function,” and (3) he may 13 succeed on the merits of his claims with the assistance of counsel. ECF No. 10 at 2-3. These 14 claims “are typical of almost every prisoner civil rights plaintiff and alone” are insufficient 15 to satisfy the “exceptional circumstances” standard required to justify appointment of counsel. 16 Thompson v. Paramo, No. 16CV951-MMA (BGS), 2018 WL 4357993, at *1 (S.D. Cal. Sept. 13, 17 2018); see also Jones v. Kuppinger, 13CV451-WBS (AC), 2015 WL 5522290, at *3-4 (E.D. Cal. 18 Sept. 17, 2015) (“Circumstances common to most prisoners, such as a deficient general 19 education, lack of knowledge of the law, mental illness and disability, do not in themselves 20 establish exceptional circumstances warranting appointment of voluntary civil counsel.”) 21 Thus far, Plaintiff has drafted and submitted several pleadings without the assistance of 22 counsel. See Docket. In addition to the instant Motion, Plaintiff has submitted a Complaint [ECF 23 No. 1], a Motion to Proceed [ECF No. 2], a Prisoner Trust Fund Account 24 Statement [ECF No. 3], a Notice Regarding Complaint [ECF No. 5], and a second Prisoner Trust 25 Fund Account Statement [ECF No. 6]. From the Court’s review of these documents, there is no 26 indication that the issues are overly complex. In his Complaint, Plaintiff alleges two main claims 27 against Defendants: 1) Excessive Force and 2) Stolen Property. See ECF No. 1 at 3-8, 10. 1 ruling that “any remedy he may have lies in state court and his federal claim must be dismissed 2 for failing to state a claim upon which § 1983 relief may be granted.” ECF No. 7 at 7. With only 3 his Excessive Force claim remaining, Plaintiff’s allegations are “relatively straightforward.” 4 Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015). Based on his filings, Plaintiff has 5 demonstrated that, though not formally trained in law, he is capable of grasping and conveying 6 the legal facts and issues involved in his case. See Taa v. Chase Home Fin., 2012 WL 507430, 7 at *2 (N.D. Cal. Feb. 15, 2012) (noting that plaintiffs’ lack of legal training and poverty did not 8 constitute exceptional circumstances, as these are the types of difficulties many other litigants 9 face in proceeding ); Wilborn, 789 F.2d at 1331 (“If all that was required to establish 10 successfully the complexity of the relevant issues was a demonstration of the need for 11 development of further facts, practically all cases would involve complex issues.”); see also 12 LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) (affirming a district court’s denial of request 13 for appointment of counsel where pleadings demonstrated petitioner had “a good understanding 14 of the issues and the ability to present forcefully and coherently his contentions”). 15 Additionally, it is clear that Plaintiff is able to articulate the claims of his case. Plaintiff 16 asserts that due to “his learning disability” and “being developmentally disabled,” “he is unable 17 to draft motions and conduct legal research.” ECF No. 10 at 3. To support his claim, Plaintiff 18 filed a form letter, attached as “Exhibit A” to his Motion, that states that he “was assisted in 19 writing this letter” by a librarian and that Plaintiff “is claiming a disability and requesting a 20 reasonable accommodation under the” Americans with Disabilities Act (“ADA”)1. Id. at 12. In 21 22 1 The letter further states that “Armstrong v. Schwarzenegger and Clark v. California are federal 23 civil rights actions brought pursuant to the” ADA. Id. at 12. The rulings in both Armstrong and Clark required California state prisons to draft and promulgate plans to achieve ADA compliance 24 and to ensure that California prisoners with developmental disabilities were protected from 25 serious injury and discrimination on the basis of their disability. See Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010); see also Clark v. California, 739 F. Supp. 2d 26 1168 (N.D. Cal. 1996). Though Plaintiff’s letter states that he “may be unable to effectively communicate with the court or fully prosecute this action due to [his] claimed disability” [ECF 27 No. 10 at 12], that claim is undermined by Plaintiff’s filings in this case which establish his ability to both communicate with the Court and prosecute this case. Additionally, the letter merely 1 further support, Plaintiff also filed a declaration from another inmate which states that Plaintiff 2 is a participant in the Enhanced Outpatient Program (“EOP”) and Developmentally Disabled 3 Program (“DDP”)2 and that “other prisoners and library staff have been helping” Plaintiff with 4 his case. Id. at 14. 5 Though mental disability may be grounds for appointment of counsel in some cases, there 6 must be substantial evidence of a plaintiff’s incompetence. Thompson, 2018 WL 4357993, at 7 *2; Fletcher v. Quin, No. 15CV2156-GPC (NLS), 2018 WL 840174, at *2 (S.D. Cal. Feb. 13, 2018) 8 (impairment must be “an incapacitating mental disability” and be supported by “substantial 9 evidence of incompetence”). “The court must be able to find a nexus between the mental 10 disorder and the plaintiff’s ability to articulate his claims.” Fletcher, 2018 WL 840174, at *2; see 11 McElroy v. Cox, Civil No. 08-1221-JM (AJB), 2009 WL 4895360 at *2 (E.D. Cal. Dec. 11, 2009). 12 Here, Plaintiff has not established that his learning disabilities are incapacitating, that he is 13 incompetent, or that his learning disability or mental impairment significantly impedes his ability 14 to articulate his claims or litigate his case. West v. Dizon, No. 12CV1293-DAD P, 2014 WL 15 114659, at *4 (E.D. Cal. Jan. 9, 2014) (denying appointment of counsel when mental disability 16 was only alleged and plaintiff submitted no evidence as to the “nature or effects” of the 17 disability). Without more specific and current information regarding his mental impairments, 18 19 any information or evidence establishing the extent of Plaintiff’s cognitive disabilities or their 20 impact on his ability to litigate this case. Accordingly, though this letter “satisfies the [California Department of Corrections and Rehabilitation’s] obligation” under Armstrong and Clark, it does 21 not itself create an obligation for the Court to appoint counsel without further evidence of a 22 mental impairment.
23 2 The DDP was developed pursuant to the ruling in Clark, 739 F. Supp. 2d at 1182-83. It was established to “ensure the identification and appropriate classification, housing, protection, and 24 nondiscrimination of inmates and parolees with developmental disabilities.” Hopkins v. Bustos, 25 No. 15CV788-JLS (PCL), 2017 WL 9565357, at *2 (S.D. Cal. Feb. 9, 2017), report and recommendation adopted, No. 15CV788-JLS (PCL), 2017 WL 2644668 (S.D. Cal. June 20, 2017), 26 aff'd, 785 F. App'x 379 (9th Cir. 2019). Inmates are screened for developmental disabilities upon incarceration in California Department of Corrections and Rehabilitation (“CDCR”) 27 institutions through a “multi-phase process and clinical judgment” to identify which inmates “fit the criteria for developmental disabilities.” Id. at *3. The mere fact that Plaintiff is a participant 1 || the Court cannot find a nexus between Plaintiff's cognitive capability and his alleged inability to 2 || articulate his claims. See Meeks v. Nunez, No. 13CV973-GPC (BGS), 2017 WL 476425, at *3-4 3 || (S.D. Cal. Feb. 6, 2017) (denying appointment of counsel when plaintiff submitted “Inmate 4 ||Request for Assistance from the Court” asserting a mental impairment of “Schizoaffective 5 || Disorder” signed by a forensic psychologist but failed to submit actual medical records, such as 6 treating physician's notes); McElroy, 2009 WL 4895360, at *3. 7 Furthermore, Plaintiff's purported mental impairments have not prevented him from 8 || articulating the facts and circumstances relevant to his claims. Plaintiff's reliance on another 9 || inmate for assistance in drafting this motion or other pleadings does not alter this analysis. See 10 ||Montano v. Solomon, No. 2:07-CV-0800 KJN P, 2010 WL 4137476, at *7 (E.D. Cal. Oct. 19, 11 2010) (denying indigent plaintiff's motion for appointment of counsel as failing to present an 12 exceptional circumstance under 28 U.S.C. § 1915(e)(1) where “plaintiff has adequately 13 || presented, albeit through another inmate, the salient factual allegations of this case ... as well 14 ||as the matters now before the court”). Accordingly, the Court finds that Plaintiff has not 15 || established “exceptional circumstances” based on his mental status. Fletcher, 2018 WL 840174, 16 at *2. 17 Finally, while Plaintiff's Excessive Force claim survived the District Judge's initial 18 screening, it is too early for the Court to determine Plaintiff's likelihood of success on the merits 19 || as the case currently is in the pleading stage and discovery has not opened. Wilborn, 789 F.2d 20 at 1331; see also Reed v. Paramo, No. 18CV361-JLS (LL), 2020 WL 2767358, at *1 (S.D. Cal. 21 ||May 28, 2020) (holding that it was too early to determine plaintiff's likelihood of success on the 22 ||merits as fact discovery had not been completed). Because Plaintiff failed to establish the 23 || requisite “exceptional circumstances,” it is not in the interest of justice to appoint counsel at this 24 Accordingly, Plaintiff's Motion for Appointment of Counsel is DENIED. 25 IT 1S SO ORDERED. 26 ||Dated: 8/4/2020 lobe Mager 27 Hon. Barbara L. Major United States Maaistrate Judae 28