Venson v. Jackson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 18CV2278-BAS (BLM) 11 CLIFFORD ALLAN VENSON,

12 Plaintiff, ORDER DENYING MOTION FOR REFERRAL TO THE FEDERAL PRO 13 v. BONO PROJECT

14 SERGEANT Q. JACKSON, et al., [ECF NO. 109] 15 Defendants. 16 17 18 19 On July 15, 2020, Plaintiff submitted an Motion for Referral of Case to Federal 20 Pro Bono Project that was received by the Court on July 20, 2020 and accepted on discrepancy 21 on July 22, 2020. See ECF Nos. 108-109. Plaintiff requests that the Court refer his case to the 22 Federal Pro Bono Project in an “attempt to locate volunteer counsel to try this case.” Id. at 3. 23 Plaintiff argues that exceptional circumstances exist due to the Covid-19 pandemic and that on 24 January 23, 2013, he was granted the appointment of counsel and referred to the Federal Pro 25 Bono Project in another matter pending in the Northern District of California. Id.; see also 26 Exhibit 1. 27 A. Referral to Federal Pro Bono Project 28 “The Federal Pro Bono Project (the "Project") is a joint effort of the Justice & Diversity 1 Center of The Bar Association of San Francisco and the United States District Court for the 2 Northern District of California.” https://www.probono.net/sf/Federalcivil/. “The Federal Pro 3 Bono Project assists litigants who do not have legal representation in the Northern District of 4 California.” https://www.sfbar.org/jdc/jdc-legal-services-programs/federal-pro-bono-project/. 5 The Project provides “information and advice at the Legal Help Centers located in the San 6 Francisco and Oakland district courthouses” and “also arranges pro bono legal representation 7 for litigants without legal representation and who have cases in the Northern District of 8 California.” Id. “To be referred for placement with a pro bono attorney, the court must issue 9 an order asking the project to identify counsel.” Id. 10 Because the instant matter is being litigated in the Southern District of California and not 11 the Northern District, Plaintiff is not eligible for referral to the Federal Pro Bono Project. 12 Accordingly, Plaintiff's motion for an order referring Plaintiff to the Federal Pro Bono Project is 13 DENIED WITH PREJUDICE. 14 B. Appointment of Counsel 15 In the event that Plaintiff alternatively seeks an order appointing counsel, the Court 16 reminds Plaintiff that the Constitution provides no right to appointment of counsel in a civil case 17 unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep’t 18 of Soc. Servs., 452 U.S. 18, 25 (1981). However, under 28 U.S.C. § 1915(e)(1), courts are 19 granted discretion to appoint counsel for indigent persons under “exceptional circumstances.” 20 Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional 21 circumstances demands at least “an evaluation of the likelihood of the plaintiff’s success on the 22 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity 23 of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 24 1986)). 25 Thus far, Plaintiff has drafted and submitted pleadings and motions without the assistance 26 of counsel. See Docket. In addition to the instant motion, he has submitted a complaint (ECF 27 No. 1), a motion to proceed (ECF No. 2), a prisoner trust fund account 28 statement (ECF No. 3), multiple notices of change of address (ECF Nos. 6, 24, 32, 39, 66), a 1 motion to appoint counsel (ECF No. 10), a motion for referral to the Federal pro bono Program 2 (ECF No. 13), an opposition to Defendants motion to dismiss (ECF No. 21), a letter requesting 3 that the Court review a perceived error on the briefing schedule (ECF No. 23), a second 4 opposition to Defendants’ motion to dismiss (ECF No. 25), a third opposition to Defendants’ 5 motion to dismiss (ECF No. 27), a first amended complaint (ECF No. 35), an opposition to 6 Defendants’ motion to dismiss the first amended complaint (ECF No. 42), a declaration in support 7 of the opposition (ECF No. 43), a second opposition to Defendants’ motion to dismiss the first 8 amended complaint (ECF No. 47), a motion to continue deadlines by thirty days (ECF No. 58), 9 a second amended complaint (ECF No. 60), multiple motions to strike affirmative defenses (ECF 10 Nos. 68, 71, 87), motions for expert witness (ECF No. 73, 75, 78), a motion for judicial notice 11 (ECF No. 80), and an opposition to Defendants’ motion for summary judgment (ECF No. 107). 12 From the Court’s review of these documents, it is clear that Plaintiff is able to articulate the 13 claims of his case without legal assistance. Under such circumstances, a district court does not 14 abuse its discretion in denying a state prisoner’s request for appointment of counsel as it is 15 simply not warranted by the interests of justice. See LaMere v. Risley, 827 F.2d 622, 626 (9th 16 Cir. 1987) (affirming district court’s denial of request for appointment of counsel where pleadings 17 demonstrated petitioner had “a good understanding of the issues and the ability to present 18 forcefully and coherently his contentions”). Further, Plaintiff has not demonstrated a likelihood 19 of success on the merits such that his case should be classified as an “exceptional 20 circumstance[].” Agyeman, 390 F.3d at 1103; see also Wilborn, 789 F.2d at 1331. 21 Plaintiff argues that exceptional circumstances exist due to COVID-19 and that he was 22 forced to submit his opposition to Defendants’ motion for summary judgment without accessing 23 the law library due to COVID-19 protocols. ECF No. 109 at 2-3. However, Plaintiff does not 24 address whether legal materials were made available to him in other ways and does not provide 25 any details as to how the COVID-19 pandemic has created an exceptional circumstance in this 26 case. Id. Accordingly, the Court does not find that the COVID-19 pandemic has created 27 exceptional circumstances such that the appointment of counsel is warranted in this case. See 28 Pitts v. Washington, 2020 WL 2850564, at *1 (W.D. Wash. June 2, 2020) (denying plaintiff’s 1 || request for the appointment of counsel and concluding that plaintiff's bare assertion that he was 2 || “unable to access the law library because of social distancing” and the COVID-19 pandemic did 3 constitute exceptional circumstances); see also Faultry v. Saechao, 2020 WL 2561596, at *2 4 |) (E.D. Cal. May 20, 2020) (“The impacts of the COVID-19 health crisis on prison operations are 5 || also common to all prisoners.”). 6 Because Plaintiff has not alleged the requisite “exceptional circumstances,” the Court 7 || DENIES without prejudice Plaintiff's request for appointment of counsel. 8 IT 1S SO ORDERED. . 9 Dated: 7/22/2020 lxirbee Mager 10 Hon. Barbara L. ajor 1 United States Maaistrate Judae

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