-RBB Thornton v. Schwarzenegger et al, No. 3:2010cv01583 - Document 16 (S.D. Cal. 2010)
Court Description: ORDER Denying 7 Plaintiff's Motion For Appointment of Counsel. Signed by Magistrate Judge Ruben B. Brooks on 10/4/10. (All non-registered users served via U.S. Mail Service)(jer)
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-RBB Thornton v. Schwarzenegger et al Doc. 16 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 19 20 21 Civil No. 10cv01583 BTM (RBB) WILLIAM CECIL THORNTON, ) ) ) Plaintiff, ) ) v. ) ) ) ARNOLD SCHWARZENEGGER, Governor ) of California; MATTHEW CATE, ) Secretary of Corrections; JOHN ) DOE LEWIS, Parole Unit ) Supervisor; MARK JOSEPH, Parole ) ) Agent; CHRISTINE CAVALIN, ) Parole Agent; JOHN DOE #1, ) Parole Agent, ) ) Defendants. ) ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 7] Plaintiff William Cecil Thornton, a state prisoner proceeding 22 pro se and in forma pauperis, filed a Complaint on July 28, 2010, 23 pursuant to 42 U.S.C. § 1983 [ECF Nos. 1, 5]. 24 Thornton alleges that his constitutional rights to due process, 25 freedom of association, and to be free from cruel and unusual 26 punishment were violated when he was not allowed to live with his 27 wife in their home after being released on parole. 28 count two, Thornton argues that his rights to be free from cruel 1 In count one, (Compl. 3.) In 10cv01583 BTM (RBB) Dockets.Justia.com 1 and unusual punishment, to due process, and to his “interest of 2 liberty” were violated when Plaintiff was assigned to a sex 3 offender parole unit in California based on his out-of-state 4 criminal record. 5 alleges his right to equal protection of the laws was violated 6 because he was discriminated against. 7 he complains that he was “banished” from moving back in with his 8 wife in their home because he was “told it was not in[]compliance 9 with Proposition 83 or California Penal Code § 3003.5.” (Id. at 4.) Finally, in count three, Thornton (Id. at 4-5.) Specifically, (Id. at 5 10 (citation omitted).) 11 parole unit started an intimate relationship with Thornton’s wife 12 and was permitted to move into the same home with her, even though 13 Plaintiff was prohibited from doing so. 14 But another sex offender assigned to the same (Id.) On August 25, 2010, Thornton filed this Motion for Appointment 15 of Counsel [ECF No. 7]. 16 asserts the following: 17 his imprisonment limits his ability to litigate; (3) the issues in 18 this case are complex and require significant research; (4) 19 Thornton has limited law library access and knowledge of the law; 20 and (5) a trial will likely involve conflicting testimony and legal 21 issues. 22 In support of his request, Plaintiff (1) He is unable to afford an attorney; (2) (Mot. Appointment Counsel 2-3.) 28 U.S.C. § 1915(e)(1) provides, “The court may request an 23 attorney to represent any person unable to afford counsel.” 28 24 U.S.C.A. § 1915(e)(1) (West 2010). 25 that there is generally no constitutional right to counsel in civil 26 cases.” 27 1996) (citing Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 28 (9th Cir. 1994)). But “it is well-established United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. There is also no constitutional right to 2 10cv01583 BTM (RBB) 1 appointed counsel to pursue a § 1983 claim. 2 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 3 F.2d 1349, 1353 (9th Cir. 1981)); accord Campbell v. Burt, 141 F.3d 4 927, 931 (9th Cir. 1998). 5 “to make coercive appointments of counsel.” 6 States Dist. Court, 490 U.S. 296, 310 (1989) (discussing section 7 1915(d)); see also United States v. $292,888.04 in U.S. Currency, 8 54 F.3d 564, 569 (9th Cir. 1995). 9 Rand v. Rowland, 113 Federal courts do not have the authority Mallard v. United Nevertheless, district courts have discretion, pursuant to 28 10 U.S.C. § 1915(e)(1), to request attorney representation for 11 indigent civil litigants upon a showing of exceptional 12 circumstances. 13 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 14 1236 (9th Cir. 1984)); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 15 Cir. 1991); Burns v. County of King, 883 F.2d 819, 824 (9th Cir. 16 1989). 17 plaintiff seeking assistance requires at least an evaluation of the 18 likelihood of the plaintiff’s success on the merits and an 19 evaluation of the plaintiff’s ability to articulate his claims ‘in 20 light of the complexity of the legal issues involved.’” 21 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 22 1331 (9th Cir. 1986)). 23 and both must be viewed together before reaching a decision.’” 24 Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1331). 25 I. 26 See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, “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, Thornton must present a 27 nonfrivolous claim that is likely to succeed on the merits. 28 Wilborn, 789 F.2d at 1331. Plaintiff alleges in the Complaint that 3 10cv01583 BTM (RBB) 1 his constitutional rights to due process, freedom of association, 2 to be free from cruel and unusual punishment, and to equal 3 protection of the laws were violated. 4 allegations arise from events that occurred while Plaintiff was 5 incarcerated at R.J. Donovan State Prison (“Donovan”) and after he 6 was released on parole.1 7 (Compl. 3-5.) These (Id. at 1.) In count one, Thornton claims he had been incarcerated for a 8 parole violation and was released on November 10, 2007. 9 3.) (Id. at “[B]efore my release[] I was served with papers on 9-17-07 10 that stated I would not be allowed to live at my home with my wife 11 because of provisions of Proposition 83, that was applied to me 12 because of an 1987 Tennessee case.” 13 constitutes a violation of his rights to due process, freedom of 14 association, and to be free from cruel and unusual punishment. 15 (Id.) 16 (Id.) He asserts this In count two, Plaintiff argues that on November 21, 2007, he 17 was “assigned to a GPS unit of parole and given very overbroad 18 conditions of parole” as a result of his out-of-state criminal 19 record. 20 parole [and] to an Agent Christine Cavalin.” 21 claims that this rises to the level of a violation of his right to 22 be free from cruel and unusual punishment and to due process. 23 (Id.) 24 (Id. at 4.) “I was assigned to a sex offender unit of (Id.) Thornton Further, in count three, Plaintiff contends that in November 25 2007, he was not permitted to reside with his wife in their home 26 because he was “told it was not in compliance with Proposition 83 27 28 1 Currently, Thornton is incarcerated at the California Correctional Institution at Tehachapi, California. (Compl. 1.) 4 10cv01583 BTM (RBB) 1 or California Penal Code § 3003.5. 2 another sex offender in Thornton’s parole unit, Richard Lilly, 3 moved into Plaintiff’s residence. 4 [intimate] relationship with my wife and was allowed to move into 5 the very home I was told was out of compliance to me as a sex 6 offender.” 7 against, in violation of his right to equal protection of the laws. 8 (Id.) 9 (Id.) (Id. at 5.) (Id.) But in 2008, “[Lilly] started an Plaintiff complains that he is discriminated Prisoners may not be deprived of “life, liberty, or property 10 without due process of law.” 11 (1974). 12 process by claiming defendants failed to employ fair procedures to 13 deprive him of a protected liberty interest. 14 Burch, 494 U.S. 113, 127 (1990); Kentucky Dep’t of Corrs. v. 15 Thompson, 490 U.S. 454, 460 (1989); Hewitt v. Helms, 459 U.S. 460, 16 466 (1983); Walker v. Sumner, 14 F.3d 1415, 1419 (9th Cir. 1994) 17 (discussing liberty interest arising out of disciplinary 18 proceedings). 19 Process Clause itself or a federal statute or regulation. 20 Dep’t of Corrs., 490 U.S. at 460; Hewitt, 459 U.S. at 466. 21 liberty interest protected by statute or regulation is generally 22 limited to freedom from restraint that “imposes atypical and 23 significant hardship on the inmate in relation to the ordinary 24 incidents of prison life.” 25 (1995). 26 Wolff v. McDonnell, 418 U.S. 539, 556 A plaintiff may allege a violation of procedural due See Zinermon v. A protected liberty interest may arise under the Due Kentucky But the Sandin v. Connor, 515 U.S. 472, 483-84 As to a prisoner’s right to freedom of association, “‘[a] 27 prison inmate retains those First Amendment rights that are not 28 inconsistent with his status as a prisoner or with the legitimate 5 10cv01583 BTM (RBB) 1 penological objectives of the corrections system.’” Johnson v. 2 California, 543 U.S. 499, 510 (2005) (quoting Pell v. Procunier, 3 417 U.S. 817, 822 (1974)). 4 prisoners are, by necessity, restricted and “may be curtailed 5 whenever the institution’s officials, in the exercise of their 6 informed discretion, reasonably conclude that such associations 7 . . . possess the likelihood of disruption to prison order or 8 stability, or otherwise interfere with the legitimate penological 9 objectives of the prison environment.” But the associational rights of Jones v. N.C. Prisoners’ 10 Labor Union, Inc., 433 U.S. 119, 132 (1977); Rizzo v. Dawson, 778 11 F.2d 527, 532 (9th Cir. 1985). 12 Although an inmate has the right to be free from cruel and 13 unusual punishment, “the treatment a prisoner receives and the 14 conditions under which he is confined are subject to scrutiny under 15 the Eighth Amendment.” 16 (1993). 17 with the basic human needs, one of which is ‘reasonable safety.’” 18 Id. at 33 (quoting DeShaney v. Winnebago County Dep’t of Soc. 19 Servs., 489 U.S. 189, 200 (1989)). 20 Unusual Punishment Clause, a prison official must have a 21 ‘sufficiently culpable state of mind.’” 22 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 297 23 (1991). 24 Helling v. McKinney, 509 U.S. 25, 31 The Eighth Amendment “requires that inmates be furnished “To violate the Cruel and Farmer v. Brennan, 511 Moreover, “[i]nmates are protected under the Equal Protection 25 Clause against invidious discrimination.” 26 No. C07-5426RBL-KLS, 2008 U.S. Dist. LEXIS 80776, at *13 (W. D. 27 Wash. Sept. 3, 2008) (citing Wolff, 418 U.S. at 556; Lee v. 28 Washington, 390 U.S. 333, 334 (1968)). 6 Johnson v. Van Boening, To state an equal 10cv01583 BTM (RBB) 1 protection violation claim, “a plaintiff must show that the 2 defendants acted with an intent or purpose to discriminate against 3 the plaintiff based upon membership in a protected class.” 4 v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 5 classes include race, religion, national origin, and poverty. 6 Damiano v. Florida Parole & Probation Comm’n, 785 F.2d 929, 932-33 7 (11th Cir. 1986). 8 violated by unintentional conduct that may have a disparate impact. 9 Washington v. Davis, 426 U.S. 229, 239 (1976). 10 Barren Protected Further, the Fourteenth Amendment is not Although Thornton’s allegations may be sufficient to state a 11 claim for relief, it is too early for the Court to determine 12 Plaintiff’s likelihood of success on the merits. 13 additional factual information, the Court cannot conclude whether 14 Thornton is likely to succeed. 15 550, 552 (S.D. Cal. 1993). 16 II. 17 Without See Bailey v. Lawford, 835 F. Supp. Plaintiff’s Ability To Proceed Without Counsel To be entitled to appointed counsel, Thornton must also show 18 he is unable to effectively litigate the case pro se in light of 19 the complexity of the issues involved. 20 1331. 21 See Wilborn, 789 F.2d at Courts have required that “indigent plaintiffs make a 22 reasonably diligent effort to secure counsel as a prerequisite to 23 the court’s appointing counsel for them.” 24 552. 25 secure counsel. 26 therefore not made a reasonably diligent effort to secure counsel 27 prior to petitioning for appointment of counsel. Bailey, 835 F. Supp. at Here, Plaintiff has not shown that he made any efforts to (See Mot. Appointment Counsel 1-3.) He has 28 7 10cv01583 BTM (RBB) 1 Thorton advances several arguments to support his request for 2 attorney representation. 3 legal counsel, and he refers to his request to proceed in forma 4 pauperis [ECF No. 2]. 5 forma pauperis status [ECF No. 5], his argument is not compelling 6 because indigence alone does not entitle a plaintiff to appointed 7 counsel. 8 9 First, he claims he is unable to afford (Id. at 2.) Even though he was granted in Next, Plaintiff argues that his imprisonment will limit his ability to litigate. (Id.) Although he asserts that his access to 10 legal materials is limited, Thornton has not demonstrated that he 11 is being denied “reasonable” access. 12 Bd. of Corrs., 776 F.2d 851, 858 (9th Cir. 1985). 13 Constitution does not guarantee a prisoner unlimited access to a 14 law library. 15 manner, and place in which library facilities are used.” 16 (citation omitted). 17 reasonable access to a law library or other means of conducting 18 legal research, or that he is subjected to burdens beyond those 19 ordinarily experienced by pro se plaintiffs. 20 See Lindquist v. Idaho State “[T]he Prison officials of necessity must regulate the time, Id. Thornton has not shown that he does not have Plaintiff maintains the issues involved in the case are 21 complex and will require significant research. 22 Counsel 2.) 23 reasonable access to the law library or other means of performing 24 legal research. 25 that his limitations are greater than those ordinarily experienced 26 by pro se plaintiffs. 27 28 (Mot. Appointment But again, Thornton has not alleged that he lacks See Lindquist, 776 F.2d at 858. Nor has he shown Thornton also contends he has limited access to legal materials and limited knowledge of the law. 8 (Mot. Appointment 10cv01583 BTM (RBB) 1 Counsel 2.) Plaintiff’s Complaint is adequate in form. Also, 2 Thornton was able to file motions for leave to proceed in forma 3 pauperis and for appointment of counsel, which suggests an ability 4 to navigate the legal process. 5 1032, 1033 (8th Cir. 1996) (finding the district court did not 6 abuse its discretion in denying plaintiff counsel, in part because 7 plaintiff adequately filed a complaint and other pre-trial 8 materials). 9 served with the assistance of counsel.” See Plummer v. Grimes, 87 F.3d “[A]ny pro se litigant certainly would be better Rand, 113 F.3d at 1525; 10 see also Wilborn, 789 F.2d at 1331 (“[A] pro se litigant will 11 seldom be in a position to investigate easily the facts necessary 12 to support the case.”) 13 appointed counsel if he can show “that because of the complexity of 14 the claims he [is] unable to articulate his positions.” 15 F.3d at 1525. 16 makes this case “exceptional” or the issues in it particularly 17 complex. 18 But a plaintiff is only entitled to Rand, 113 Thornton has not shown anything in the record that Finally, Plaintiff complains that an attorney would help him 19 present evidence and cross-examine witnesses at trial due to the 20 likelihood of conflicting testimony. 21 3.) 22 witnesses do not indicate the presence of complex legal issues 23 warranting a finding of exceptional circumstances. 24 F.3d at 1525 (holding that while the appellant might have fared 25 better with counsel during discovery and in securing expert 26 testimony, this is not the test). 27 circumstances” required for appointment of counsel pursuant to 28 28 U.S.C. § 1915(e)(1) are absent. (Mot. Appointment Counsel 2- But factual disputes and anticipated cross-examination of See Rand, 113 Accordingly, the “exceptional 9 10cv01583 BTM (RBB) 1 Because Plaintiff has failed to demonstrate either a 2 likelihood of success on the merits or an inability to represent 3 himself (beyond the ordinary burdens encountered by prisoners 4 representing themselves pro se), Plaintiff’s motion is DENIED 5 without prejudice. 6 IT IS SO ORDERED. 7 DATE: October 4, 2010 ______________________________ Ruben B. Brooks United States Magistrate Judge 8 9 cc: 10 Judge Moskowitz All Parties of Record 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 K:\COMMON\BROOKS\CASES\1983\PRISONER\THORNTON1583\Order re appointment of counsel.wpd 10cv01583 BTM (RBB)
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