-RBB Goolsby v. Ridge et al, No. 3:2009cv02654 - Document 11 (S.D. Cal. 2010)
Court Description: ORDER Denying Plaintiff's Motion For Appointment Of Counsel (Re Doc. 8 ): Plaintiff's motion is denied without prejudice. Signed by Magistrate Judge Ruben B. Brooks on 8/25/2010. (All non-registered users served via U.S. Mail Service.) (mdc)
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-RBB Goolsby v. Ridge et al Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 ) Civil No. 09cv02654 WQH (RBB) ) ) ORDER DENYING PLAINTIFF’S Plaintiff, ) MOTION FOR APPOINTMENT OF ) COUNSEL [ECF NO. 8] v. ) ) ) NEAL RIDGE, M.D.; M. MARTINEZ, ) M.D.; C. WILSON, correctional ) ) officer, ) Defendants. ) ) ) Plaintiff Thomas Goolsby, a state prisoner proceeding pro se THOMAS GOOLSBY, 19 and in forma pauperis, filed a Complaint on November 23, 2009 [ECF 20 No. 1] and a First Amended Complaint1 on March 24, 2010 [ECF No. 21 5], pursuant to 42 U.S.C. § 1983. Plaintiff alleges that his 22 constitutional rights to adequate medical care and to be free from 23 cruel and unusual punishment were violated when Defendants Ridge 24 and Martinez denied Plaintiff medical care for his torn rotator 25 cuff. (Am. Compl. 3, 11.) He also complains that Defendant Wilson 26 27 1 28 Because Goolsby’s First Amended Complaint is not consecutively paginated, the Court will use the page numbers assigned by the electronic case filing system. 1 09cv02654 WQH (RBB) Dockets.Justia.com 1 interfered with Plaintiff’s medical care when Wilson took 2 Plaintiff’s medically prescribed walker from him. 3 Further, Goolsby alleges that Wilson failed to protect him “from 4 painful and unsafe activities” when Wilson took Plaintiff’s walker, 5 forced him to live on the top tier, and handcuffed him while 6 knowing these actions caused Plaintiff severe pain. 7 (Id. at 12-15.) (Id. at 16.) On July 14, 2010, Goolsby filed this Motion for Appointment of 8 Counsel (ECF No. 8).2 9 counsel, Plaintiff asserts the following: In support of his request for appointment of (1) He is unable to 10 afford an attorney; (2) his imprisonment limits his ability to 11 litigate; (3) the issues are complex and require significant 12 research; (4) Goolsby has limited law library access and knowledge 13 of the law; (5) a trial will likely involve conflicting testimony; 14 and (6) Goolsby has attempted but failed to secure counsel. 15 Appointment Counsel 1-2.) 16 28 U.S.C. § 1915(e)(1) provides: (Mot. “The court may request an 17 attorney to represent any person unable to afford counsel.” 18 U.S.C.A. § 1915(e)(1) (West 2010). 19 that there is generally no constitutional right to counsel in civil 20 cases.” 21 1996) (citing Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 22 (9th Cir. 1994)). 23 appointed counsel to pursue a § 1983 claim. 24 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 25 F.2d 1349, 1353 (9th Cir. 1981)); accord Campbell v. Burt, 141 F.3d 26 927, 931 (9th Cir. 1998). 28 But “it is well-established United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. There is also no constitutional right to Rand v. Rowland, 113 Federal courts do not have the authority 27 2 28 The Court will also cite to Goolsby’s Motion for Appointment of Counsel using the page numbers assigned by the Court’s electronic case filing system. 2 09cv02654 WQH (RBB) 1 “to make coercive appointments of counsel.” Mallard v. United 2 States Dist. Court, 490 U.S. 296, 310 (1989) (discussing § 3 1915(d)); see also United States v. $292,888.04 in U.S. Currency, 4 54 F.3d 564, 569 (9th Cir. 1995). Nevertheless, district courts have discretion, pursuant to 28 5 6 U.S.C. § 1915(e)(1), to request attorney representation for 7 indigent civil litigants upon a showing of exceptional 8 circumstances. 9 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 10 1236 (9th Cir. 1984)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 11 Cir. 1991); Burns v. County of King, 883 F.2d 819, 824 (9th Cir. 12 1989). 13 plaintiff seeking assistance requires at least an evaluation of the 14 likelihood of the plaintiff’s success on the merits and an 15 evaluation of the plaintiff’s ability to articulate his claims ‘in 16 light of the complexity of the legal issues involved.’” 17 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 18 1331 (9th Cir. 1986)). 19 and both must be viewed together before reaching a decision.’” 20 Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1331). 21 I. 22 “A finding of the exceptional circumstances of the Agyeman, “‘Neither of these factors is dispositive Likelihood of Plaintiff’s Success on the Merits To receive court-appointed counsel, Goolsby must present a 23 nonfrivolous claim that is likely to succeed on the merits. 24 Wilborn, 789 F.2d at 1331. 25 causes of action arising under the Constitution for deliberate 26 indifference to Plaintiff’s serious medical needs and violations of 27 his right to be free from cruel and unusual punishment. 28 Compl. 3, 13-16.) The Amended Complaint purports to state 3 (Am. 09cv02654 WQH (RBB) 1 Plaintiff contends that his constitutional rights were 2 violated while he was incarcerated at Richard J. Donovan State 3 Prison (“Donovan”) between December 16, 2008, and February 11, 4 2009. 5 Donovan from San Diego County Jail, he was suffering from the 6 following injuries: 7 strained back and neck muscles, possible strictures (intestinal 8 cuts), a human bite on his right hand, and damaged back muscles. 9 (Id. at 4-5.) (Id. at 3.) Goolsby claims that when he was transferred to a potentially torn rotator cuff, sprained or The doctors at county jail had given Plaintiff a 10 neck brace, a walker, muscle relaxants, and pain medication for 11 these injuries. 12 tests to be performed on Plaintiff, such as a magnetic resonance 13 imaging test (“MRI”) to determine whether Goolsby’s rotator cuff 14 was torn, an endoscopy, and a colonoscopy. 15 that he was never seen by a doctor during his two months at 16 Donovan. (Id. at 5.) The doctors had also ordered several (Id.) Plaintiff claims (Id. at 3.) 17 In count one of the Amended Complaint, Goolsby states that 18 Defendants Ridge and Martinez, both medical doctors at Donovan, 19 were deliberately indifferent to his serious medical needs because 20 they did not examine Plaintiff’s injuries, order medication, or 21 ensure that the MRI, the endoscopy, and the colonoscopy were 22 performed on Goolsby. 23 Plaintiff’s walker to be returned to him after it was improperly 24 taken. 25 Martinez violated his constitutional rights to receive adequate 26 medical care and be free from cruel and unusual punishment. 27 at 3; id. Attach. #1 Mem. P. & A. 1-2.) (Id. at 11.) (Id. at 9, 11.) Nor did Defendants order Goolsby alleges that doctors Ridge and (Id. 28 4 09cv02654 WQH (RBB) 1 In counts two and three, Goolsby makes similar Eighth 2 Amendment claims regarding Defendant Wilson’s deliberate 3 indifference to serious medical needs and failure to protect 4 Plaintiff from the use of excessive force. 5 Attach. #1 Mem. P. & A. 7 (citing Jett v. Penner, 439 F.3d 1091, 6 1096 (9th Cir. 2006)).) 7 acted with deliberate indifference to Plaintiff’s severe neck, 8 back, and shoulder pain when Wilson took Plaintiff’s walker from 9 him, forced him to live in a top tier cell, and handcuffed his arms (Am. Compl. 15-16; id. Goolsby alleges in count two that Wilson 10 behind his back. 11 6.) 12 to protect Plaintiff from “painful and unsafe activities.” 13 Compl. 16; id. Attach. #1 Mem. P. & A. 6-7). 14 (Am. Compl. 13-15; id. Attach. #1 Mem. P. & A. 5- Plaintiff contends in count three that Wilson’s actions failed (Am. Two elements comprise an Eighth Amendment claim for deliberate 15 indifference to serious medical needs. 16 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). 17 plaintiff must show a ‘serious medical need’ by demonstrating that 18 ‘failure to treat a prisoner’s condition could result in further 19 significant injury or the “unnecessary and wanton infliction of 20 pain.”’” 21 the defendant’s response to the need was deliberately indifferent.” 22 Id. (citation omitted). 23 (a) a purposeful act or failure to respond to a prisoner’s pain or 24 possible medical need and (b) harm caused by the indifference.” 25 Id. (citation omitted). 26 Id. (citation omitted). Jett, 439 F.3d at 1096 “First, the “Second, the plaintiff must show The second prong “is satisfied by showing A plaintiff claiming excessive force under the Eighth 27 Amendment must “allege . . . the unnecessary and wanton infliction 28 of pain . . . .” Whitley v. Albers, 475 U.S. 312, 320 (1986). 5 09cv02654 WQH (RBB) 1 Plaintiff “is required to allege overt acts with some degree of 2 particularity such that his claim is set forth clearly enough to 3 give defendants fair notice of the type of claim being pursued.” 4 Ortez v. Washington County, 88 F.3d 804, 810 (9th Cir. 1996) 5 (citing Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 6 1984)). 7 inmate from a use of excessive force if he is deliberately 8 indifferent to a substantial risk of serious harm to an inmate.” 9 Estate of Davis v. Delo, 115 F.3d 1388, 1395 (8th Cir. 1997) “A prison official may be liable for failure to protect an 10 (citations omitted); see also Cunningham v. Gates, 229 F.3d 1271, 11 1289-90 (9th Cir. 2000). 12 Although Plaintiff’s allegations are sufficient to state a 13 claim for relief, it is too early for the Court to determine 14 Goolsby’s likelihood of success on the merits. 15 factual information, the Court cannot conclude that Plaintiff is 16 likely to succeed. 17 (S.D. Cal. 1993). 18 II. 19 Without additional See Bailey v. Lawford, 835 F. Supp. 550, 552 Plaintiff’s Ability To Proceed Without Counsel To be entitled to appointed counsel, Goolsby must also show he 20 is unable to effectively litigate the case pro se in light of the 21 complexity of the issues involved. See Wilborn, 789 F.2d at 1331. Courts have required that “indigent plaintiffs make a 22 23 reasonably diligent effort to secure counsel as a prerequisite to 24 the court’s appointing counsel for them.” 25 552. 26 secure counsel. 27 reasonably diligent effort to secure counsel prior to seeking an 28 order appointing counsel. Bailey, 835 F. Supp. at Plaintiff has contacted nine attorneys in an attempt to (Mot. Appointment Counsel 3-12.) 6 He has made a 09cv02654 WQH (RBB) 1 Goolsby claims he is unable to afford legal counsel. 2 1.) 3 (Id. at not entitle a plaintiff to appointed counsel. 4 This argument is not compelling because indigence alone does Plaintiff raises other grounds for the appointment of counsel. 5 He asserts that his imprisonment will limit his ability to 6 litigate. 7 complex and will require significant research. 8 states that he has limited access to the law library and knowledge 9 of the law. (Id.) He claims the issues involved in the case are (Id.) (Id.) Goolsby also Finally, Plaintiff contends an attorney would 10 help him present evidence and cross-examine witnesses at trial due 11 to the likelihood of conflicting testimony. 12 on these facts, Goolsby requests a court-appointed attorney. 13 (Id. at 1-2.) Based (Id.) Although Plaintiff asserts that his access to legal materials 14 is limited, he has not demonstrated that he is being denied 15 “reasonable” access. 16 776 F.2d 851, 858 (9th Cir. 1985). 17 guarantee a prisoner unlimited access to a law library. 18 officials of necessity must regulate the time, manner, and place in 19 which library facilities are used.” 20 Goolsby has not shown that he does not have reasonable access to a 21 law library or other means of conducting legal research, or that he 22 is subjected to burdens beyond those ordinarily experienced by pro 23 se plaintiffs. 24 See Lindquist v. Idaho State Bd. of Corrs., “[T]he Constitution does not Prison Id. (citation omitted). Plaintiff’s Amended Complaint is adequate in form. Goolsby 25 was also able to file a Motion for Appointment of Counsel, 26 suggesting an ability to navigate the legal process. 27 v. Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996) (finding the district 28 court did not abuse its discretion in denying plaintiff counsel, in 7 See Plummer 09cv02654 WQH (RBB) 1 part because plaintiff adequately filed a complaint and other pre- 2 trial materials). 3 “[A]ny pro se litigant certainly would be better served with 4 the assistance of counsel.” Rand, 113 F.3d at 1525; see also 5 Wilborn, 789 F.2d at 1331 (explaining that “a pro se litigant will 6 seldom be in a position to investigate easily the facts necessary 7 to support the case[]”). 8 appointed counsel if he can show “that because of the complexity of 9 the claims he [is] unable to articulate his positions.” But Plaintiff is only entitled to Rand, 113 10 F.3d at 1525. 11 makes this case “exceptional” or the issues in it particularly 12 complex. Goolsby has not shown anything in the record that 13 Additionally, factual disputes and anticipated cross- 14 examination of witnesses do not indicate the presence of complex 15 legal issues warranting a finding of exceptional circumstances. 16 See id. (holding that while the appellant might have fared better 17 with counsel during discovery and in securing expert testimony, 18 this is not the test). 19 circumstances” required for appointment of counsel pursuant to 28 20 U.S.C. § 1915(e)(1) are absent. 21 Accordingly, the “exceptional Because Plaintiff has failed to demonstrate either a 22 likelihood of success on the merits or an inability to represent 23 // 24 // 25 // 26 // 27 28 8 09cv02654 WQH (RBB) 1 himself (beyond the ordinary burdens encountered by prisoners 2 representing themselves pro se), Plaintiff’s motion is DENIED 3 without prejudice. 4 IT IS SO ORDERED. 5 6 DATE: August 25, 2010 ____________________________ Ruben B. Brooks United States Magistrate Judge 7 8 cc: Judge Hayes All Parties of Record 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 K:\COMMON\BROOKS\CASES\1983\PRISONER\GOOLSBY2654\Order re appointment of counsel.wpd 09cv02654 WQH (RBB)
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