Ramirez v. Paramo et al, No. 3:2014cv01830 - Document 70 (S.D. Cal. 2015)
Court Description: ORDER denying Plaintiff's 68 Fifth Motion to Appoint Counsel. All future motions requesting appointment of counsel will be rejected. Signed by Magistrate Judge William V. Gallo on 9/2/2015. (All non-registered users served via U.S. Mail Service) (jah)
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Ramirez v. Paramo et al Doc. 70 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 SAUL MIRANDA RAMIREZ, Plaintiff, v. PARAMO, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 14-CV-1830-BAS (WVG) ORDER DENYING PLAINTIFF’S FIFTH MOTION TO APPOINT COUNSEL [DOC. NO. 68] I. BACKGROUND 19 On December 15, 2014, Plaintiff filed a Second Amended Complaint (“SAC”). (Doc. 20 No. 8.) On December 18, 2014, Plaintiff filed his first Motion to Appoint Counsel. (Doc. 21 No. 10.) On December 30, 2014, this Court issued an Order Denying Plaintiff’s Motion to 22 Appoint Counsel. (Doc. No. 11.) On March 17, 2015, Plaintiff filed a second Motion to 23 Appoint Counsel. (Doc. No. 33.) On March 17, 2015, this Court issued an Order Denying 24 in Part Plaintiff’s Motion to Appoint Counsel; Requiring Response by Defendants as to 25 Plaintiff’s Access to a Law Library. (Doc. No. 37.) The Court denied Plaintiff’s second 26 request to appoint counsel, but ordered responsive briefing by Defendants as to Plaintiff’s 27 accusation that he was being denied access to a law library. Id. at 4-5. 28 1 14CV1830 Dockets.Justia.com 1 Also on March 17, 2015, the Court rejected on discrepancy order Plaintiff’s Motion 2 Requesting Documents, finding that Plaintiff’s Motion was duplicative of his pending 3 Motion to Appoint Counsel and pending Declaration Regarding Retaliation. (Doc. No. 36.) 4 The Court instructed Plaintiff not to file cumulative, duplicative motions and Declarations, 5 and noted that Plaintiff must allow the Court time to issue rulings or request responses before 6 filing cumulative, duplicative motions. Id. 7 On May 12, 2015, Plaintiff filed a third Motion to Appoint Counsel. (Doc. No. 49.) 8 Although Plaintiff did not refer to the third Motion as a motion for reconsideration of the 9 Court’s first and second Orders Denying Appointment of Counsel, Plaintiff asserted some 10 of the same reasons for requesting counsel. Id. In his first two Motions, Plaintiff claimed 11 that he was unable to afford counsel, the issues involved in his case were complex, he had 12 no access to a law library, had limited knowledge of the law, had medical issues, and that 13 counsel would assist him with discovery and cross-examination of witnesses. (Doc. No. 10 14 at 1-2; Doc. No. 33 at 1.) In his third Motion, Plaintiff once again asserted he was unable 15 to afford an attorney, the issues involved in his case were complex, and he had limited 16 knowledge of the law. (Doc. No. 49 at 1-3.) On May 12, 2015, the Court denied Plaintiff’s 17 third Motion. (Doc. No. 50.) 18 On July 13, 2015, Plaintiff filed a fourth Motion to Appoint Counsel, which Plaintiff 19 referred to as a “Motion to Renew” his request for appointment of counsel. (Doc. No. 55.) 20 Similar to his assertions in prior Motions, Plaintiff claimed that counsel should be appointed 21 because he had limited knowledge of the law. Id. at 1; Doc. No. 10 at 1; Doc. No. 49 at 3. 22 Plaintiff claimed that he had “recently learned” that each party was allowed to seek 23 information from each other in a “process [ ] called ‘discovery.’” (Doc. No. 55 at 1.) 24 Plaintiff attempted to demonstrate his lack of knowledge of the law by reciting to the Court 25 the methods of discovery that he had recently learned about, such as interrogatories, 26 depositions, and requests for admissions.1/ Id. 27 28 1/ In his fourth Motion to Appoint Counsel, Plaintiff stated, “Plaintiff has recently (continued...) 2 14CV1830 II. INSTANT MOTION 1 2 On August 21, 2015, Plaintiff filed his fifth Motion to Appoint Counsel, titled 3 “Motion for Appointment of Counsel for Discovery and Depositions.” (Doc. No. 68.) In 4 his instant Motion, Plaintiff asserts that the Court should appoint counsel so that Plaintiff 5 will be on “equal footing” with Defendants. Id. at 1. His arguments are based on the general 6 difficulty of litigating pro se, as he asserts that a lawyer can interview witnesses, has access 7 to a better source of legal information, and is more familiar with the legal process and 8 procedures. Id. at 1. Plaintiff argues that he needs counsel to assist him in deposing 9 witnesses, and during Plaintiff’s own deposition, because he is unfamiliar with the deposition 10 process and it would be “awkward and unusual” to object to questions from the witness 11 stand. Id. at 2. 12 III. APPLICABLE LAW 13 A. MOTION TO APPOINT COUNSEL 14 “There is no constitutional right to appointed counsel in a § 1983 action.” Rand v. 15 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (partially overruled en banc on other 16 grounds). Thus, federal courts do not have the authority “to make coercive appointments of 17 counsel.” Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see also United 18 States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). 19 Districts courts do have discretion, however, pursuant to 28 U.S.C. Section 1915(e)(1), 20 to request that an attorney represent indigent civil litigants upon a showing of exceptional 21 circumstances. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th 22 Cir. 2004). “A finding of the exceptional circumstances of the plaintiff seeking assistance 23 requires at least an evaluation of the likelihood of the plaintiff’s success on the merits and 24 an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of 25 26 1/ 27 (...continued) learned that each party is allowed to seek information from each other, this process is called ‘discovery’. These methods of discovery, (plaintiff has learned), include interrogatories, 28 Fed. R. Civ. Proc. rule 36, depositions, Fed. R. Civ. Proc. rule 30 and request for admissions. [also] Rule 36.” (Doc. No. 55 at 1.) 3 14CV1830 1 the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 2 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 3 Cir. 1991). 4 The Court agrees that any pro se litigant “would be better served with the assistance 5 of counsel.” Rand, 113 F.3d at 1525; citing Wilborn, 789 F.2d at 1331. However, so long 6 as a pro se litigant, like Plaintiff in this case, is able to “articulate his claims against the 7 relative complexity of the matter,” the exceptional circumstances which might require the 8 appointment of counsel do not exist. Rand, 113 F.3d at 1525 (finding no abuse of discretion 9 under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact 10 that pro se prisoner “may well have fared better-particularly in the realms of discovery and 11 the securing of expert testimony”). 12 B. MOTION FOR RECONSIDERATION 13 Motions for reconsideration should be granted only in rare circumstances. Defenders 14 of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D. Ariz. 1995). “Reconsideration is 15 appropriate if the district court: (1) is presented with newly discovered evidence; (2) 16 committed clear error or the initial decision was manifestly unjust; or (3) if there is an 17 intervening change in the controlling law.” School Dist. No. 1 J, Multnomah County v. 18 AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 19 IV. DISCUSSION 20 Once again, the Court finds that Plaintiff’s Second Amended Complaint (“SAC”) 21 primarily involves relatively straightforward Eighth and Fourteenth Amendment claims 22 related to the alleged denial of prescribed medications, and Plaintiff has demonstrated the 23 ability to articulate essential facts supporting his claims. See Doc. Nos. 5, 8, 11. Plaintiff’s 24 Complaint alleges sufficient facts and has survived the initial screening required by 28 25 U.S.C. §§ 1915(e)(2) and 1915A. Thus, the Court finds that Plaintiff appears to have an 26 adequate grasp of his case as well as the legal issues involved. See Terrell, 935 F.2d at 1017. 27 Further, Plaintiff’s arguments are not based on the complexity of the legal issues involved, 28 but rather on the general difficulty of litigating pro se, as his only arguments in the instant 4 14CV1830 1 Motion are that an attorney has better resources and is more familiar with legal processes, 2 and that it would be “awkward and unusual” to object to questions from the witness stand. 3 Plaintiff is not entitled to the appointment of counsel to assist him in his own deposition. 4 District courts within the Ninth Circuit Court of Appeals have denied requests by pro se 5 plaintiffs to appoint counsel to assist them with their own depositions. See Angelone v. 6 Furst, 2008 WL 373689, at *1 (W.D.Wash. Feb. 11, 2008); Garcia v. Masiel, 2010 WL 7 2652397, a *1 (E.D.Cal. Jul. 1, 2010); Knerr v. Richards, 2009 WL 773826, at *2 8 (W.D.Wash. Mar. 19, 2009); Estrada v. Sayre, 2013 WL 5073773, at *1-2 (N.D.Cal. Sept. 9 13, 2013). 10 Additionally, although the instant Motion is another Motion for Reconsideration, 11 Plaintiff has once again failed to meet the requirements for a filing such a motion. He has 12 not addressed any changes in the law or identified new facts since this Court’s prior Orders 13 denying his four Motions to Appoint Counsel. Although Plaintiff claims in the instant 14 Motion that he needs an attorney during his own deposition, it should come as no surprise 15 that Defendants planned to depose Plaintiff. He has filed a federal lawsuit and is a party to 16 the case. In his prior Motions, Plaintiff has sought counsel to assist him with the discovery 17 process, which includes his own deposition. Plaintiff has failed to demonstrate that the Court 18 committed clear error or that its prior decisions were manifestly unjust. Because Plaintiff 19 has not satisfied the standards required for an appointment of counsel or a motion for 20 reconsideration, Plaintiff’s motion is DENIED without prejudice. 21 V. PLAINTIFF SHALL NOT FILE DUPLICATIVE MOTIONS 22 On March 17, May 12, and August 4, 2015, the Court instructed Plaintiff not to file 23 cumulative, duplicative motions and Declarations. (Doc. No. 36; Doc. No. 50 at 2; Doc. No. 24 59 at 6.) The Court noted that Plaintiff had already filed four Motions to Appoint Counsel, 25 and attempted to file a Motion Requesting Documents which the Court found to be 26 duplicative of his second Motion to Appoint Counsel. The Court admonished Plaintiff that 27 any additional motions to appoint counsel that failed to meet the requirements for filing a 28 5 14CV1830 1 motion for reconsideration, would be considered duplicative and would be denied. (Doc. No. 2 59 at 6.) 3 Plaintiff has once again disregarded that instruction and filed a fifth Motion to Appoint 4 Counsel asserting no new arguments or facts. It is clear to the Court that while Plaintiff’s 5 initial intention to obtain free counsel to which he is not entitled may have been genuinely 6 motivated, his repeated motions have crossed the line and it is now very apparent that his 7 intention is simply to obstruct and interfere with the orderly and efficient processing of his 8 petition. In his many motions, Plaintiff has advanced virtually every conceivable argument 9 and reason under the sun for appointment of counsel. All have been rejected by this Court 10 as lacking merit and basis in law or fact. Accordingly, all future motions requesting 11 appointment of counsel will be REJECTED. 12 IT IS SO ORDERED. 13 DATED: September 2, 2015 14 15 Hon. William V. Gallo U.S. Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 6 14CV1830
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