Wani J. Kose v. H. Siez, et al.

• Court: District Court, E.D. California
• Decided: October 1, 2025
• Docket: 1:23-cv-00557
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WANI J. KOSE, Case No.: 1:23-cv-00557-KES-CDB 12 Plaintiff, ORDER REGARDING OUTSTANDING DISPOSITIONAL DOCUMENTS 13 v. ORDER SETTING STATUS CONFERENCE 14 H. SIEZ, et al., ORDER DENYING REQUEST FOR THE 15 Defendants. APPOINTMENT OF COUNSEL

16 (Doc. 53)

17 18 Plaintiff Wani J. Kose is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. section 1983. This action proceeds on Plaintiff’s Eighth Amendment failure 20 to protect claim against Defendant Saiz and his Eighth Amendment deliberate indifference to 21 serious medical needs claims against Defendants Negre and Walker. 22 I. RELEVANT BACKGROUND 23 On April 29, 2025, the Court issued its Second Scheduling Order. (Doc. 44.) A pretrial 24 conference was set for November 10, 2025, at 3:30 p.m., and jury trial was scheduled for January 25 21, 2026, at 8:30 a.m., before assigned District Judge Kirk E. Sherriff. (Id.) 26 On July 25, 2025, defense counsel Patricia M. Kealy filed a document titled “Plaintiff’s 27 Notice of Voluntary Dismissal with Prejudice of Defendants Negre and Walker.” (Doc. 45.) On July 28, 2025, defense counsel filed a Stipulation for Voluntary Dismissal with 1 Prejudice concerning Defendant Saiz. (Doc. 46.) 2 On July 31, 2025, the Court issued its Order Regarding Plaintiff’s Notice of Voluntary 3 Dismissal and the Stipulation to Voluntary Dismissal. (Doc. 47.) It determined Plaintiff could not 4 “unilaterally dismiss Negre and Walker from this action under Rule 41(a)(1)(A)(i)” considering 5 their November 7, 2023, answer to the operative complaint, but noted “the parties may jointly 6 stipulate to dismissal of Negre and Walker pursuant to Rule 41(a)(1)(A)(ii).” (Id. at 2.) Further, 7 the Court indicated it would “take no action on the filings of July 25, 2025, and July 28, 2025, to 8 allow the parties to file a single stipulation to voluntary dismissal of this action against 9 Defendants.” (Id.) The parties were directed to file a single stipulation no later than September 2, 10 2025, and were further ordered to file a status report on that same date in the event a stipulation 11 could not be timely filed. (Id. at 2-3.) 12 Following the filing of a status report on September 2, 2025 (Doc. 48), the Court extended 13 the deadline for submission of a stipulation to voluntary dismissal to September 16, 2025. (Doc. 14 49.) Further, the Court modified its earlier order to allow the parties to “file two separate 15 stipulations provided those stipulations comport with Rule 41(a)(1)(A)” of the Federal Rules of 16 Civil Procedure. (Id. at 2-3.) On September 16, 2025, the deadline for filing dispositional 17 documents was extended to September 30, 2025, by Court order. (Doc. 51.) 18 On September 29, 2025, Plaintiff filed a document titled “Wittness [sic] Listing,” 19 docketed as a motion for the attendance of witnesses at trial. (Doc. 52.) That same date, Plaintiff 20 filed a document titled “Status Summary,” docketed as a motion for extension of time. (Doc. 53.) 21 Also on September 29, 2025, defense counsel sent an email to Cori Boren, the 22 undersigned’s courtroom deputy, advising a settlement dispute had arisen and inquiring into 23 whether the undersigned would consider holding a conference in this matter to address that 24 dispute. 25 II. DISCUSSION CONCERNING SETTLEMENT 26 First, the Court acknowledges and shares defense counsel’s ex parte communication of 27 September 29, 2025. (See Ex. A, attached.) The Court finds the communication improper for it 1 between Plaintiff and defense counsel regarding settlement of this action. 2 Next, the Court notes that although the deadline for submission of dispositional 3 documents is today, September 30, 2025, it is clear from both defense counsel’s email 4 communication and Plaintiff’s filings of September 29, 2025, that those documents are not 5 forthcoming. As to the latter, Plaintiff’s “Status Summary” reveals his claimed confusion 6 concerning any dismissal with prejudice of Defendant Saiz (Doc. 53 at 1 [“I had no idea that I 7 would be dismissing H. Siez [sic] in a separate document with prejudice”] & 2 [stating he “never 8 agreed” to dismiss “all three” defendants with prejudice]),1 advises that he refused to sign revised 9 dismissal documents because he wanted settlement funds to be provided “to a third party” rather 10 than into his inmate trust account (id.) and because “a c/o was used to middleman the signing 11 which is very dangerous,” claiming he and his family’s lives “were threatened by the Green 12 Wall” (id. at 2),2 and finally, Plaintiff asks the Court to appoint counsel “due to [his acute] status” 13 (id.). 14 Notably, this action is scheduled for a pretrial conference on November 10, 2025, at 3:30 15 p.m., and a jury trial on January 21, 2026, at 8:30 a.m., before District Judge Kirk E. Sherriff. 16 (See Docs. 39, 43 [minute order], & 44.) Considering its present procedural posture,3 the 17 undersigned will set this matter for a status conference. The parties shall appear and shall be 18 prepared to address the following: (1) the status of the signed settlement agreement, and (2) any 19 necessary logistics related to the parties’ preparation of this case for trial. 20 III. PLAINTIFF’S REQUEST FOR THE APPOINTMENT OF COUNSEL 21 As noted above, Plaintiff requests this Court appoint counsel to represent him in this 22 1 Both documents submitted on July 25, 2025, and signed by Plaintiff on July 17, 2025, clearly indicate the dismissal 23 sought was “with prejudice.” (See Docs. 45 & 46.)

24 2 Other than Plaintiff’s vague and conclusory statements, there is no evidence in this record of any threats “by the Green Wall” to Plaintiff or his family, nor is there any evidence that “a c/o was used to middleman the signing 25 [presumably of the revised dispositional documents]” or, even assuming such use, that it was “very dangerous.” Thus, the undersigned does not further address Plaintiff’s allegations. 26 3 As the parties were previously advised in the Second Scheduling Order issued April 29, 2025, “[t]he dates set in 27 this order are firm and will not be modified absent a showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of the civil case docket, this Court disfavors requests to modify established dates.” (Doc. 1 action “due to [his acute] status.” The Court declines to do so. 2 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. 3 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 4 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 5 U.S.C. section 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). 6 However, in “exceptional circumstances,” the Court may request the voluntary assistance of 7 counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 8 Given that the Court has no reasonable method of securing and compensating counsel, the 9 Court will seek volunteer counsel only in extraordinary cases. In determining whether 10 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 11 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 12 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 13 citations omitted). 14 First, the Court must evaluate the likelihood of Plaintiff’s success on the merits of his 15 claims. Rand, 113 F.3d at 1525. Here, Plaintiff did not address the likelihood of his success on the 16 merits of his claims, nor is the likelihood of success evident from the face of his operative 17 complaint. Simply put, the Court has insufficient information to make such a determination. See 18 Garcia v. Blahnik, No. 14cv875-LAB-BGS, 2016 WL 4269561, at *1 (S.D. Cal. Aug. 15, 2016) 19 (“Where the court has insufficient information to determine the likelihood of success, the 20 likelihood of success factor does not support a finding of exceptional circumstances”). And the 21 fact this action is set for trial does not change that finding. See Allen v. Beard, No. 3:16-cv-2713- 22 MMA-KSC, 2018 WL 5819782, at *3 (S.D. Cal. Nov. 7, 2018) (finding plaintiff’s claim that 23 “because the Court set a trial date” a likelihood of success on the merits existed to be 24 unpersuasive, and noting that “[s]etting a trial date is standard procedure, regardless of the merits 25 of a party’s claim”). 26 Next, the Court must also evaluate Plaintiff’s ability to articulate his claims pro se in light 27 of the complexity of the legal issues involved. Rand, 113 F.3d at 1525. Here, while Plaintiff did 1 complexity. This action proceeds on Plaintiff’s Eighth Amendment failure to protect and 2 deliberate indifference to serious medical needs claims. Neither claim is complex. See, e.g., 3 Maldanado v. Merritt, No. 1:23-cv-00482-JLT-SKO PC, 2023 WL 6751114, at *3 (E.D. Cal. 4 Oct. 12, 2023) (“Eighth Amendment deliberate indifference to serious medical needs claims are 5 not complex”); Lane v. Beach, No. 1:20-cv-00147-JLT-GSA-PC, 2023 WL 4936300, at * 1 (E.D. 6 Cal. Aug. 2, 2023) (“whether defendant Beach was deliberately indifferent to Plaintiff’s serious 7 medical needs … is not complex”); Arroy v. Jeffries, No. 23-1129, 2023 WL 3010154, at *4 8 (C.D. Ill. Apr. 19, 2023) (denying motion for appointment of counsel and finding “Plaintiff’s 9 failure to protect claim is not complex”); Williams v. Whitehurst, No. 4:08CV21-SPM/AK, 2008 10 WL 1766570, at *1 (N.D. Fla. Apr. 11, 2008) (“Although Plaintiff's claims are serious, they are 11 not complex nor will he be required to do legal research since the court is familiar with the law on 12 claims of excessive force and failure to protect”). Notably too, a review of the docket for this 13 action fails to indicate Plaintiff is unable to articulate his claims considering their complexity. 14 The fact an attorney may be better able to perform research, investigate, and represent 15 Plaintiff at trial does not change the analysis. There is little doubt most pro se litigants “find it 16 difficult to articulate [their] claims,” and would be better served with the assistance of counsel. 17 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). For this reason, in the absence of 18 counsel, federal courts employ procedures which are highly protective of a pro se litigant’s rights. 19 See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent 20 standard) (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court 21 must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim– 22 Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal 23 construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 24 1261 (9th Cir. 1992). Thus, where a pro se litigant can “articulate his claims” in light of the 25 relative complexity of the matter, the “exceptional circumstances” which might require the 26 appointment of counsel do not exist. Wilborn, 789 F.2d at 1331; Palmer v. Valdez, 560 F.3d 965, 27 970 (9th Cir. 2009). 1 Court does not agree. See Jones v. Kuppinger, No. 2:13-cv-0451 WBS AC P, 2015 WL 5522290, 2 at *3-*4 (E.D. Cal. Sept. 17, 2015) (“[c]ircumstances common to most prisoners, such as a 3 deficient general education, lack of knowledge of the law, mental illness and disability, do not in 4 themselves establish exceptional circumstances warranting appointment of voluntary civil 5 counsel”); Jones v. Stieferman, 2007 WL 4219169, at *1 (E.D. Cal., Nov. 29, 2007) (“being 6 disabled and requiring use of a wheelchair to assist with mobility is not the type of exceptional 7 circumstances which allow the court to request voluntary assistance of counsel”); see also 8 Fletcher v. Quin, No. 3:15-cv-2156-GPC-NLS, 2018 WL 840174, at *2 (S.D. Cal. Feb. 13, 2018) 9 (impairment must be “an incapacitating mental disability” and be supported by “substantial 10 evidence of incompetence”); McElroy v. Cox, No. 08-1221-JM (AJB), 2009 WL 4895360 at *2 11 (E.D. Cal. Dec. 11, 2009) (“Plaintiff has submitted evidence of incompetence similar to what the 12 petitioner submitted in Allen. However, there is no nexus between his mental disorder and his 13 ability to articulate his claims. Plaintiff’s claim that he suffers from a mental illness which 14 prevents him from sufficiently bringing his case is undercut by his pleading”). 15 The test is not whether Plaintiff would benefit from the appointment of counsel; the test is 16 whether exceptional circumstances exist. See Wilborn, 789 F.2d at 1331. Here, no exceptional 17 circumstances exist warranting the appointment of counsel. 18 IV. CONCLUSION AND ORDER 19 Accordingly, the Court HEREBY ORDERS: 20 1. A status conference is SET for October 17, 2025, at 10:00 a.m., via Zoom video 21 conferencing. Defense counsel shall make all necessary arrangements to ensure 22 Plaintiff’s appearance via Zoom video conferencing from his place of confinement. 23 The Court will issue a writ of habeas corpus ad testificandum as appropriate. 24 Zoom log in information will be provided by the Court prior to the date set for the 25 status conference. 26 2. At the status conference, the parties shall be prepared to address the status of the 27 signed settlement agreement, as well as any logistical issues or concerns related to 1 3. Plaintiff's request for the appointment of counsel is DENIED. 2 4. Nothing in this order affects the procedures or deadlines outlined in the Court’s 3 Second Scheduling Order issued April 29, 2025 (see Doc. 44). 4 5. The undersigned will issue a ruling on Plaintiff’s motion concerning the attendance of 5 witnesses at trial after October 13, 2025 (the deadline for the submission of any 6 opposition) and in due course. 7 6. The Clerk of the Court is DIRECTED to terminate the motion for extension of time 8 (Doc. 53) filed September 29, 2025. 9 | ITIS SO ORDERED. | Dated: _ October 1, 2025 | hannD Pr 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5 6 7 8 9 10 11 12 13 EXHIBIT A 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 From: Patricia Kealy Sent: Monday, September 29, 2025 2:26 PM 2 To: Cori Boren Cc: Joanna Hood ; Angie Brodbeck 3 Subject: Kose v. Siez, et al. (Case No. 1:23-cv-00557 KES-CDB) – Request for Conference re Settlement 4 Dispute

5 Hello, 6 I hope that you are well! I am the DAG assigned to the Kose v. Siez, et al. (1:23-cv-00557 KES-CDB) 7 case. A settlement dispute has arisen in this case and based on my review of Judge Baker's standing 8 orders, I would like to inquire whether Judge Baker would be open to scheduling a conference with the parties to resolve this dispute in a manner similar to the procedures set forth for informal 9 resolution of discovery disputes.

10 The parties negotiated a settlement in this case on July 17, 2025, and Plaintiff contemporaneously signed the settlement agreement outlining the terms and conditions of the settlement, two separate 11 stipulations for voluntary dismissal (for different Defendants), and a Payee Data Record (PDR) form. The settlement was reached by the parties directly without a formal settlement conference before a 12 magistrate judge. However, since then, several disputes have arisen regarding the completion of all 13 settlement-related documentation, including a single Stipulation for Voluntary Dismissal of all Defendants and the PDR form (the one previously completed by Plaintiff was signed in the incorrect 14 spot). As noted above, the settlement agreement has already been signed and, therefore, does not need to be signed again. 15 Plaintiff and I have spoken several times by phone and communicated by letters in an attempt to 16 resolve these disputes. At Plaintiff’s request, on Friday, September 26, 2025, I met with Plaintiff in person at his current institution of incarceration, the California Health Care Facility (CHCF), to 17 answer additional questions for Plaintiff, show him copies of settlement documents that he had 18 previously signed, and to retrieve signed copies of the outstanding settlement paperwork, including the Stipulation for Voluntary Dismissal of all Defendants and a new PDR form. Despite assurances 19 that he would sign the remaining settlement documents if I made the in-person visit, Plaintiff refused to sign them and expressed his desire to renegotiate a settlement in this case. 20 Therefore, I respectfully request that the Court schedule a conference with the parties and Judge 21 Baker to resolve the apparent settlement dispute that has arisen. 22 Please let me know if there is any additional information I can provide. Thank you in advance for 23 your time.

24 Kind regards, 25 Patricia Kealy

26 Patricia M. Kealy | Deputy Attorney General | California Department of Justice 27 Correctional Law Section | 1300 I Street | Sacramento, CA 95814 t (916) 210-7366 | e patricia.kealy@doj.ca.gov