-RBB George v. Uribe et al, No. 3:2011cv00070 - Document 35 (S.D. Cal. 2012)
Court Description: ORDER denying 33 Motion to Appoint Counsel. Signed by Magistrate Judge Ruben B. Brooks on 1/17/12. (All non-registered users served via U.S. Mail Service)(lmt)
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-RBB George v. Uribe et al Doc. 35 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD EARL GEORGE, Plaintiff, 12 13 v. 14 15 D. URIBE, et al., Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 11cv70 JLS(RBB) ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 33] 17 18 Plaintiff Richard Earl George, a state prisoner currently 19 incarcerated at Salinas Valley State Prison, and proceeding pro se 20 and in forma pauperis, filed a civil rights complaint on January 21 12, 2011, pursuant to 42 U.S.C. § 1983 [ECF No. 1]. On March 21, 22 2011, United States District Judge Janis L. Sammartino dismissed 23 Plaintiff’s Complaint for failure to state a claim upon which 24 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 25 1915A(b), and gave him leave to file an amended complaint [ECF No. 26 3]. Plaintiff timely filed a First Amended Complaint against the 27 Warden and various correctional officers at Centinela State Prison 28 (“Centinela”), alleging his Constitutional rights were violated 1 11cv70 JLS(RBB) Dockets.Justia.com 1 when he was attacked by another inmate on January 8, 2010, while 2 housed at Centinela. 3 5, 2011, Defendants filed a Motion to Dismiss the First Amended 4 Complaint [ECF No. 23]. 5 filed his Response in Opposition to Defendants’ Motion to Dismiss 6 [ECF No. 26]. 7 in Opposition to Defendants’ Motion to Dismiss [ECF No. 29]. (First Am. Compl. 3,1 ECF No. 5.) On August On September 1, 2011, Plaintiff George Shortly thereafter, he filed a Supplemental Response 8 While Defendants’ Motion to Dismiss was pending, Plaintiff’s 9 Motion for Appointment of Counsel in this case was filed nunc pro 10 tunc to December 30, 2011 [ECF No. 33]. 11 the allegations raised in the First Amended Complaint when deciding 12 whether to grant Plaintiff’s request for counsel. 13 Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“As a general rule, 14 when a plaintiff files an amended complaint, ‘[t]he amended 15 complaint supercedes the original, the latter being treated 16 thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 17 57 (9th Cir. 1967)). 18 of counsel, Plaintiff asserts the following: (1) He is unable to 19 afford an attorney; (2) his imprisonment limits his ability to 20 litigate; (3) he has limited education and no training in law; and 21 (4) the issues in this case are complex and beyond his 22 understanding. 23 The Court will consider Rhodes v. In support of his request for the appointment (Mot. Appointment Counsel 2-5, ECF No. 33.) “The court may request an attorney to represent any person 24 unable to afford counsel.” 25 But “it is well-established that there is generally no 26 constitutional right to counsel in civil cases.” 28 U.S.C.A. § 1915(e)(1) (West 2006). United States v. 27 1 28 Because the First Amended Complaint is not consecutively paginated, the Court will cite to the document using the page numbers assigned by the Court’s electronic case filing system. 2 11cv70 JLS(RBB) 1 Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citations omitted). 2 There is also no constitutional right to appointed counsel to 3 pursue a § 1983 claim. 4 Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th 5 Cir. 1981)); accord Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 6 1998). 7 appointments of counsel.” 8 490 U.S. 296, 310 (1989) (discussing § 1915(d)); see also United 9 States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 10 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Federal courts do not have the authority “to make coercive Mallard v. United States Dist. Court, 1995). 11 Nevertheless, district courts have discretion, pursuant to 28 12 U.S.C. § 1915(e)(1), to request attorney representation for 13 indigent civil litigants upon a showing of exceptional 14 circumstances. 15 1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221, 16 1236 (9th Cir. 1984)). 17 of the plaintiff seeking assistance requires at least an evaluation 18 of the 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 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting 25 Wilborn, 789 F.2d at 1331). 26 A. 27 28 See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, “A finding of the exceptional circumstances Agyeman, “‘Neither of these factors is dispositive Likelihood of Plaintiff’s Success on the Merits To receive court-appointed counsel, Plaintiff must present a nonfrivolous claim that is likely to succeed on the merits. 3 11cv70 JLS(RBB) 1 Wilborn, 789 F.2d at 1331. 2 alleges that his Eighth and Fourteenth Amendment rights were 3 violated when prison officials failed to protect him from an attack 4 by another inmate. 5 Plaintiff is currently incarcerated at Salinas Valley State Prison, 6 the allegations of the First Amended Complaint arise from events 7 that occurred while George was incarcerated at Centinela State 8 Prison. 9 In his First Amended Complaint, George (First Am. Compl. 8, ECF No. 5.) Although (Id. at 3.) Plaintiff alleges that on January 8, 2010, prison staff at 10 Centinela conducted security training exercises and that Defendant 11 Captain Hernandez was in charge of the exercise on facility C yard. 12 (Id.) 13 to keep inmates from entering the security area unless the inmate 14 had a written entry pass and identification. 15 Plaintiff, Defendants Valasquez and Alvarado allowed two inmates to 16 breach security and enter the yard in order to assault Plaintiff. 17 (Id. at 4.) 18 the assault from the side wall of the facility four building. 19 (Id.) George further claims Sergeant Valasquez was the head yard 20 officer in charge of all yard staff. (Id. at 6.) 21 George claims that Defendant Hernandez ordered prison staff (Id.) According to Plaintiff alleges that Valasquez and Alvarado watched Plaintiff alleges that after Defendant Farias observed four 22 inmates, including Plaintiff, fighting on yard two, Farias 23 allegedly radioed for a “code response” and activated the yard 24 alarm. 25 the public address system; however, Plaintiff did not comply. 26 (Id.) 27 struck in the torso area with a fist. (Id. at 5.) (Id. at 4.) Farias ordered all inmates to the ground over George claims he received a blow to back of the head and was 28 4 11cv70 JLS(RBB) 1 Plaintiff contends that Defendant Carvajal responded to the 2 radio call of Defendant Farias and observed Plaintiff and another 3 inmate preparing to fight each other. 4 ordered both inmates to get down on the ground. 5 allegedly hesitated at first, but eventually complied. 6 Defendant Carvajal then cuffed Plaintiff and escorted him to a 7 holding cell before placing George in administrative segregation 8 housing. 9 Hernandez, and other staff members met to write a fraudulent report 10 regarding the inmates’ participation in a riot in order to cover up 11 staff’s negligence and security breach. (Id.) (Id. at 5.) Carvajal (Id.) George (Id.) Plaintiff alleges that Defendants Lopez, (Id.) 12 George maintains that he asked to see a nurse for his 13 injuries, and the nurse discovered a golf-ball-sized bump behind 14 his left ear. 15 headache and blurry vision from the incident; he was prescribed 16 pain relief medication and eye drops, and was scheduled to see an 17 optometrist. 18 post-traumatic stress disorder syndrome as a result of the assault. 19 (Id.) 20 (Id. at 6.) (Id.) Plaintiff alleges that he experienced a Plaintiff contends that he was diagnosed with In his Amended Complaint, George maintains that Defendant 21 Valenzuela was the senior hearing officer conducting Plaintiff’s 22 115 rules violation hearing, and Valenzuela recommended a four 23 month SHU (segregated housing unit) term. 24 Defendant Valenzuela violated department rules and regulations by 25 interfering with Plaintiff’s assigned hearing incident 26 investigator. (Id.) 27 his assigned investigator. 28 have shared Plaintiff’s witness questionnaire with Defendant (Id.) Plaintiff claims Plaintiff states that Defendant Gutierrez was (Id. at 7.) 5 Gutierrez is alleged to 11cv70 JLS(RBB) 1 Valenzuela before the hearing so that Valenzuela could instruct 2 Gutierrez not to ask certain questions that may incriminate staff. 3 (Id. at 7.) 4 chief disciplinary officer, recommended the amount of time for 5 Plaintiff’s disciplinary action, and ordered Plaintiff to be 6 transferred from Centinela in an alleged effort to cover up staff 7 negligence. 8 off on the documents and is responsible for staff’s actions. 9 Plaintiff alleges that Defendant Calderon was the (Id.) George claims that Defendant Warden Uribe signed (Id.) "[T]he treatment a prisoner receives and the conditions under 10 which he is confined are subject to scrutiny under the Eighth 11 Amendment." 12 Eighth Amendment "requires that inmates be furnished with the basic 13 human needs, one of which is 'reasonable safety.'" 14 (quoting DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 15 189, 200 (1989)). 16 protected from violence while in custody. 17 U.S. 825, 833 (1994); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 18 2000); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 19 1989). 20 inmates from physical abuse." 21 (9th Cir. 1982). 22 Constitution imposes a duty to assume some responsibility for his 23 safety and well-being. 24 Helling v. McKinney, 509 U.S. 25, 31 (1993). The Id. at 33 Therefore, a plaintiff has a right to be Farmer v. Brennan, 511 "Prison officials must take reasonable steps to protect Hoptowit v. Ray, 682 F.2d 1237, 1250 When the state takes a person into custody, the DeShaney, 489 U.S. at 1005. To establish an Eighth Amendment violation, a plaintiff must 25 show that the defendant acted with deliberate indifference to a 26 substantial risk of serious harm to the prisoner's safety. 27 511 U.S. at 834; see Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th 28 Cir. 1995); Madrid v. Gomez, 889 F. Supp. 1146, 1267-68 (N.D. Cal. 6 Farmer, 11cv70 JLS(RBB) 1 1995). 2 are met; one is objective, and the other is subjective. 3 511 U.S. at 834; see Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 4 2009). 5 "sufficiently serious." 6 Seiter, 501 U.S. 294, 298 (1991)). 7 must subjectively "know of and disregard an excessive risk to 8 inmate health or safety." 9 The prison official is only liable when two requirements Farmer, First, the purported violation must be objectively Farmer, 511 U.S. at 834 (citing Wilson v. Second, the prison official Id. at 837. The Equal Protection Clause of the Fourteenth Amendment 10 ensures that similarly situated persons are treated alike. 11 Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). 12 This right extends to prisoners. 13 556 (1974). 14 groups of people, but also individuals who would constitute a 15 "class of one." 16 (2000). City of Wolf v. McDonnell, 418 U.S. 539, The equal protection guarantee safeguards not only Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 17 A plaintiff can establish an equal protection cause of action 18 by demonstrating that the defendant intentionally discriminated on 19 the basis of plaintiff's membership in a protected class, such as 20 race, religion, national origin, and poverty. 21 Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998); Damiano v. Fla. 22 Parole & Prob. Comm'n, 785 F.2d 929, 932-33 (11th Cir. 1986); see 23 United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011) 24 (stating that prisoners do not constitute a suspect class for equal 25 protection purposes). 26 implicate a fundamental right or a suspect classification, a 27 plaintiff can make an equal protection claim by establishing that 28 the defendant intentionally treated plaintiff differently from Barren v. Alternatively, if the state action does not 7 11cv70 JLS(RBB) 1 other similarly situated individuals without a rational basis for 2 the difference in treatment. 3 U.S. 591, 601 (2008); Olech, 528 U.S. at 564. 4 Engquist v. Or. Dep't of Agric., 553 It is too early for the Court to determine George’s likelihood 5 of success on the merits. 6 Amended Complaint, and the arguments made in Defendants’ pending 7 Motion to Dismiss [ECF No. 23], Plaintiff may not have sufficiently 8 pleaded that prison staff 9 an excessive risk to Plaintiff’s health or safety to support a Based on the allegations in the First subjectively knew of, and disregarded, 10 claim under the Eight Amendment. 11 Likewise, George has not alleged a membership in a protected class 12 to sufficiently plead a Fourteenth Amendment violation. 13 152 F.3d at 1194-95. 14 Court cannot conclude that the Plaintiff is likely to succeed on 15 the merits of his claims. 16 552 (S.D. Cal. 1993). 17 B. 18 Farmer, 511 U.S. at 834. Barren, Without additional factual information, the See Bailey v. Lawford, 835 F. Supp. 550, Plaintiff’s Ability to Proceed Without Counsel To be entitled to appointed counsel, George must also show he 19 is unable to effectively litigate the case pro se in light of the 20 complexity of the issues involved. 21 Courts have required that “indigent plaintiffs make a reasonably 22 diligent effort to secure counsel as a prerequisite to the court’s 23 appointing counsel for them.” 24 Plaintiff has not shown he made any efforts to secure counsel. 25 (See Mot. Appointment Counsel 2-3, ECF No. 33.) 26 See Wilborn, 789 F.2d at 1331. Bailey, 835 F. Supp. at 552. Here, George initially claims he lacks any meaningful sources of 27 income to afford legal counsel. 28 not sufficient because indigence alone does not entitle a plaintiff (Id. at 2, 5.) 8 This argument is 11cv70 JLS(RBB) 1 to appointed counsel. 2 imprisonment will limit his ability to litigate, because prison 3 lock-downs “impair his access to the law library.” 4 Although his access to legal materials may be limited, George has 5 not demonstrated that he is being denied “reasonable” access. 6 Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 858 (9th Cir. 7 1985). 8 access to a law library. 9 regulate the time, manner, and place in which library facilities Further, Plaintiff asserts that his (Id. at 2.) See “[T]he Constitution does not guarantee a prisoner unlimited Prison officials of necessity must 10 are used.” 11 does not have reasonable access to a law library or other means of 12 conducting legal research, or that he is subjected to burdens 13 beyond those ordinarily experienced by pro se plaintiffs. 14 Id. (citation omitted). George has not shown that he Plaintiff also contends that he has limited education, and the 15 issues involved in this matter are “very complex.” 16 Appointment Counsel 2-3, ECF No. 33.) 17 Plaintiff’s Amended Complaint is adequate in form. 18 George was able to file a motion requesting to proceed in forma 19 pauperis [ECF No. 2], a prior Motion for Appointment of Counsel 20 [ECF No. 4], an Amended Complaint [ECF No. 5], and a Motion for 21 Entry of Default Judgment [ECF No. 31]. 22 his Response in Opposition to Defendants’ Motion to Dismiss [ECF 23 No. 26], and a Supplemental Response in Opposition to the Motion to 24 Dismiss [ECF No. 29], suggesting an ability to navigate the legal 25 process. 26 (finding the district court did not abuse its discretion in denying 27 plaintiff counsel, in part because plaintiff adequately filed a 28 complaint and other pretrial materials). (Mot. The Court notes that Additionally, He was also able to file See Plummer v. Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996) 9 11cv70 JLS(RBB) 1 “[A]ny pro se litigant certainly would be better served with 2 the assistance of counsel.” 3 Wilborn, 789 F.2d at 1331 (“[A] pro se litigant will seldom be in a 4 position to investigate easily the facts necessary to support the 5 case.”). 6 show “that because of the complexity of the claims he [is] unable 7 to articulate his positions.” 8 not identified anything in the record that makes this case 9 “exceptional” or the issues in it particularly complex. 10 Rand, 113 F.3d at 1525; see also Plaintiff is only entitled to appointed counsel if he can Rand, 113 F.3d at 1525. George has Agyeman, 390 F.3d at 1103. 11 Because Plaintiff has failed to demonstrate either a 12 likelihood of success on the merits or an inability to represent 13 himself beyond the ordinary burdens encountered by pro se 14 prisoners, Plaintiff’s Motion for Appointment of Counsel is DENIED 15 without prejudice. 16 Dated: January 17, 2012 ______________________________ 17 Ruben B. Brooks United States Magistrate Judge 18 19 cc: Judge Sammartino All Parties of Record 20 21 22 23 24 25 26 27 28 10 11cv70 JLS(RBB)
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