McKenzie v. Casillas et al, No. 3:2012cv01602 - Document 36 (S.D. Cal. 2013)

Court Description: ORDER Denying 35 Motion to Appoint Counsel. Signed by Magistrate Judge Ruben B. Brooks on 4/16/2013. (All non-registered users served via U.S. Mail Service)(knb)

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McKenzie v. Casillas et al Doc. 36 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. 12cv1602 BEN (RBB) ) ) ) Plaintiff, ) v. ) ) ) R. CASILLAS, J. NUTT, M.D. CARPIO, J. OLIVO, HECTOR LOPEZ, ) ) D. RODERICK, E. URIBE, E. ) CASTILLO, R. LIZARRAGA, B. HATFIELD, J. SALCEDA, DOE 1, P. ) ) ALANIS, ) ) Defendants. ) ) GUSTAVO MCKENZIE, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL PURSUANT TO 28 U.S.C. 1915(d) & (e)(1) [ECF NO. 35] 19 20 Plaintiff Gustavo McKenzie, a state prisoner proceeding pro se 21 and in forma pauperis, initiated this civil rights action pursuant 22 to 42 U.S.C. 1983, alleging that Defendants violated the First 23 Amendment when they retaliated against him for filing internal 24 grievances and a civil action against prison employees. 25 17, ECF No. 1; Order Granting Pl.'s Mot. Proceed In Forma Pauperis 26 1, ECF No. 4.)1 (Compl. 7- Before the Court is McKenzie's Motion for 27 1 28 Because the Complaint is not consecutively paginated, the Court will cite to the page numbers assigned by the electronic case filing system. 1 12cv1602 BEN (RBB) 1 Appointment of Counsel, filed nunc pro tunc to January 2, 2013 [ECF 2 No. 35]. 3 I. Procedural Background 4 This lawsuit relates to a civil rights action McKenzie filed 5 on March 25, 2010, against several prison employees in California 6 Superior Court ("underlying action"). 7 removed to the United States District Court for the Southern 8 District of California on December 8, 2010. 9 No. 10cv1490–LAB (MDD), 2011 U.S. Dist. LEXIS 118373, at *1-2 (S.D. That case was subsequently See McKenzie v. Ellis, 10 Cal. July 18, 2011) (report and recommendation regarding 11 defendants' motion to dismiss complaint). 12 action, McKenzie claimed that Defendants violated his First and 13 Fourteenth Amendment rights when they refused to accommodate his 14 religious dietary needs. 15 were dismissed without leave to amend, and his state claims were 16 remanded to the California Superior Court on September 13, 2012. 17 McKenzie v. Ellis, No. 10cv1490-LAB [MDD] 2012 U.S. Dist. LEXIS 18 130973, at *1 (S.D. Cal. Sept. 13, 2012) (order dismissing federal 19 claims and remanding case to state court). 20 Id. at *1-5. In the underlying Plaintiff's federal claims McKenzie filed his Complaint in this matter on June 27, 2012, 21 naming thirteen Defendants [ECF No. 1]. 22 Defendants retaliated against him for filing internal grievances 23 and the underlying lawsuit. 24 maintains that Defendants have engaged in various retaliatory 25 actions, including breaking Plaintiff's typewriter; writing a false 26 rule violation report; "maliciously" imposing various sanctions as 27 punishment; refusing to accommodate Plaintiff's religious dietary 28 requirements even though he had a "Religious Diet Card"; removing Plaintiff alleges that (Compl. 7-17, ECF No. 1.) 2 Plaintiff 12cv1602 BEN (RBB) 1 McKenzie from the "Religious Diet List"; threatening to fight 2 Plaintiff; denying McKenzie "allowable books, hygiene items[,] and 3 some collectible postcards[]" that were provided to everyone else 4 housed in Plaintiff's unit; and arbitrarily rejecting McKenzie's 5 inmate grievances. (Id. at 8-17.) 6 On October 2, 2012, Defendants filed a Motion to Revoke 7 Plaintiff's IFP Status and Dismiss [ECF No. 20] ("Motion to Revoke 8 and Dismiss"). 9 within the meaning of 28 U.S.C. § 1915(g) and that he is not in Defendants maintain that McKenzie has three strikes 10 imminent danger of serious physical injury. 11 Dismiss 2, ECF No. 20.) 12 that Defendants' Motion to Revoke and Dismiss was untimely pursuant 13 to Federal Rule of Civil Procedure 12(a)(1)(A)(i) and that he does 14 not have three strikes within the meaning of 28 U.S.C. § 1915(g). 15 (Opp'n Defs.' Mot. Revoke & Dismiss 5-11, ECF No. 22.)2 16 filed their Reply on November 2, 2012, asserting that their motion 17 was timely filed pursuant to Federal Rule of Civil Procedure 18 12(a)(1)(A)(ii) and that McKenzie failed to show that he does not 19 have three strikes within the meaning of 28 U.S.C. § 1915(g). 20 (Defs.' Reply Pl.'s Opp'n 1-2, ECF No. 23.) 21 Revoke and Dismiss is currently pending before the Honorable Roger 22 T. Benitez. 23 (Defs.' Mot. Revoke & Plaintiff filed an Opposition, claiming Defendants Defendants' Motion to Plaintiff submitted a Motion for Entry of Default against 24 Defendant J. Nutt, which was filed nunc pro tunc to November 30, 25 2012 [ECF No. 29]. 26 stating that he timely responded in this case before McKenzie moved Nutt filed an opposition on December 11, 2012, 27 28 2 The Court cites to the page numbers assigned by the electronic case filing system. 3 12cv1602 BEN (RBB) 1 for default. 2 Plaintiff filed a reply on December 26, 2012 [ECF No. 32]. 3 Honorable Roger T. Benitez denied McKenzie's Motion for Entry of 4 Default on January 3, 2013 [ECF No. 33]. 5 (Def.'s Opp'n Mot. Entry Default 2, ECF No. 30.) The Plaintiff's Motion for Appointment of Counsel ("Motion") was 6 filed nunc pro tunc to January 2, 2013 [ECF No. 35]. McKenzie 7 asserts that appointed counsel is appropriate for several reasons: 8 (1) Defendants' ongoing retaliation is resulting in "periodic 9 denials of access to the facility's law library"; (2) his medical 10 condition (open-angle glaucoma) has resulted in the loss of vision 11 in his right eye, which has "become a major impediment in the 12 preparation of documents"; (3) he is a "layman at law"; and (4) he 13 has been unable to obtain independent counsel. 14 Counsel 5, ECF No. 35.) 15 16 II. (Mot. Appointment Discussion Plaintiff requests the appointment of counsel to assist him in 17 prosecuting this civil action. 18 right to appointment of counsel in a civil case unless an indigent 19 litigant may lose his physical liberty if he loses the litigation. 20 Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25 (1981). 21 Nonetheless, district courts maintain discretion to appoint counsel 22 for indigent persons. 23 discretion may be exercised only under "exceptional circumstances." 24 25 26 27 28 The Constitution does not provide a 28 U.S.C.A. § 1915(e)(1) (West 2012). This Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances requires an evaluation of both "the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Neither of these factors is dispositive and both must be viewed together before reaching a decision . . . . 4 12cv1602 BEN (RBB) 1 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) 2 (alteration in original) (quoting Weygandt v. Look, 718 F.2d 952, 3 954 (9th Cir. 1983)). 4 proceed pro se, courts generally require, as a threshold matter, 5 the plaintiff to show that (1) he is indigent, and (2) he "has made 6 a reasonably diligent effort to secure counsel." 7 Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993); see also Cota v. 8 Scribner, No. 09cv2507-AJB (BLM), 2012 U.S. Dist. LEXIS 20460, at 9 *2-3 (S.D. Cal. Feb. 16, 2012). 10 When examining a plaintiff's ability to Bailey v. McKenzie alleges that he has "writ[en] to numerous pro bono 11 attorneys, and legal clinics, with no response." 12 Counsel 5, ECF No. 35.) 13 reasonably diligent effort to obtain counsel. 14 Dist. LEXIS 20460, at *3 (holding that the plaintiff had shown a 15 reasonably diligent effort to secure counsel by "stat[ing] that he 16 attempted to secure counsel on his own[]" (emphasis added) (citing 17 Bailey, 835 F. Supp. at 552)). 18 nonetheless inappropriate at this time because McKenzie's Complaint 19 may not withstand Defendants' pending Motion to Dismiss [ECF No. 20 20]. 21 LEXIS 68786, at *10 (E.D. Cal. July 21, 2009) (denying motion to 22 appoint counsel due to insufficient information to assess 23 likelihood of success on merits); see also Bailey, 835 F. Supp. at 24 552. 25 (Mot. Appointment Thus, Plaintiff appears to have made a See Cota, 2012 U.S. Appointment of counsel is See Harris v. Duc, No. S CIV 06-2138 DOC, 2009 U.S. Dist. Defendants filed a motion to revoke Plaintiff's in forma 26 pauperis status under 28 U.S.C. § 1915(g), alleging that McKenzie 27 has accumulated three strikes within the meaning of the statute, 28 and he is not in imminent danger of serious bodily injury. 5 (Defs.' 12cv1602 BEN (RBB) 1 Mot. Revoke & Dismiss 2, ECF No. 20.) 2 minute order indicating that the motion would be submitted on the 3 papers; the hearing date was vacated; and the court intended to 4 issue a written order [ECF No. 24]. 5 Judge Benitez issued a Section 1915(g) prohibits a prisoner from proceeding in forma 6 pauperis if, while incarcerated, he has brought at least three 7 prior lawsuits "in a court of the United States that [were] 8 dismissed on the grounds that [they were] frivolous, malicious, or 9 fail[ed] to state a claim upon which relief may be granted . . . ." 10 28 U.S.C.A. § 1915(g) (West 2006). 11 plaintiff's in forma pauperis status bears the initial burden of 12 providing the court with documentation of prior dismissals that 13 count as strikes under § 1915(g). 14 1120 (9th Cir. 2005). 15 evidence to make a prima facie case for revocation of a plaintiff's 16 in forma pauperis status, the burden shifts to the plaintiff, who 17 "bears the ultimate burden of persuading the court that § 1915(g) 18 does not preclude [in forma pauperis] status." 19 A defendant who challenges a Andrews v. King, 398 F.3d 1113, After a defendant has produced sufficient Id. "[O]nce a prisoner has accumulated three strikes, he is 20 prohibited by § 1915(g) from pursuing any other action [in forma 21 pauperis] in federal court unless he is under 'imminent danger of 22 serious physical injury.'" 23 2009 U.S. Dist. LEXIS 120520, at *3 (S.D. Cal. Dec. 28, 2009) 24 (quoting 28 U.S.C. § 1915(g)). 25 exception based on the alleged conditions at the time the complaint 26 was filed." 27 2007); see also id. at 1056-57 (holding that plaintiff satisfied 28 the imminent danger exception in § 1915(g) because he alleged that McNeil v. Eply, No. 09-2485 BEN (CAB), "Prisoners qualify for the Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 6 12cv1602 BEN (RBB) 1 the defendants' ongoing practice of housing plaintiff with 2 contagious cell mates placed him at risk of contracting serious 3 disease). 4 plausible allegation that the prisoner faced imminent danger of 5 serious physical injury at the time of filing." 6 (internal quotation marks omitted). 7 "[T]he exception applies if the complaint makes a Id. at 1055 McKenzie does not make any plausible allegations that he faced 8 imminent serious bodily injury on June 27, 2012, the date he filed 9 his Complaint. See id. Although Plaintiff contends that Defendant 10 Uribe threatened to fight McKenzie six months earlier, on January 11 22, 2011, Plaitniff does not state that the threat is ongoing, nor 12 does he maintain that he is in imminent danger of serious bodily 13 injury. 14 Dismiss 1-2, ECF No. 22); see also Tierney v. Atkins, No. 12-00308 15 SOM/KSC, 2012 U.S. Dist. LEXIS 76982, at *6 (D. Haw. June 4, 2012). 16 "'[A] prisoner's allegation that he faced danger in the past' does 17 not satisfy § 1915(g)'s imminent danger exception[]." 18 2012 U.S. Dist. LEXIS 76982, at *6 (quoting Abdul-Akbar v. 19 McKelvie, 239 F.3d 307, 311 (3rd Cir. 2001)); see also Cervantes, 20 493 F.3d at 1053 ("[T]he availability of the exception turns on the 21 conditions a prisoner faced at the time the complaint was filed, 22 not at some earlier or later time."). 23 exception in § 1915(g) does not apply, and Plaintiff has three 24 strikes under the statute, he will lose his ability to proceed 25 without the prepayment of filing fees. 26 Marshals, No. 10cv2246 H (CAB), 2010 U.S. Dist. LEXIS 127779, at *5 27 (S.D. Cal. Nov. 30, 2010) (denying in forma pauperis status and 28 dismissing for failure to pay filing fee). (See Compl. 13, EFC No. 1; Opp'n Defs.' Mot. Revoke & 7 Tierney, Thus, if the imminent danger See Griffin v. U.S. 12cv1602 BEN (RBB) 1 In support of their Motion to Revoke and Dismiss, Defendants 2 have identified six of Plaintiff's previous cases that they contend 3 count as five strikes under § 1915(g),3 along with supporting 4 documents. 5 3-5, ECF No. 20; id. Attach. #2 Defs.' Req. Judicial Notice, 1-60.) 6 In his Opposition to Defendants' Motion to Revoke, McKenzie argues 7 that (1) the motion is untimely; (2) he does not have three strikes 8 under § 1915(g); and (3) the district court should not take 9 judicial notice of Defendants' submissions. 10 11 (Defs.' Mot. Revoke & Dismiss Attach. #1 Mem. P. & A. (See Opp'n Defs.' Mot. Revoke & Dismiss 4-11, ECF No. 22.) Because Judge Benitez has not yet ruled on Defendants' Motion 12 Revoke and Dismiss, it is too early for this Court to assess 13 Plaintiff's likelihood of success on the merits. 14 Defendants' pending motion is uncertain, and if granted, whether 15 McKenzie will pay filing fees or post security for the filing fees 16 is unknown. 17 The resolution of McKenzie has also failed to show that exceptional 18 circumstances justify the appointment of counsel. Plaintiff 19 insists that he lacks sufficient legal knowledge to proceed without 20 the assistance of counsel. (Mot. Appointment Counsel 5, ECF No. 21 22 23 24 25 26 27 28 3 Defendants maintain that Plaintiff's following prior cases count as strikes under 28 U.S.C. § 1915(g): (1) McKenzie v. Woodford, Case No. 1:04-cv-05903-AWI-WMW (E.D. Cal. Dec. 20, 2007) (dismissed); (2) McKenzie v. Ellis, Case No. 3:10-cv-01490-LAB (MDD) (S.D. Cal. Sept. 12, 2012) (federal claims dismissed and remaining claims remanded to state court); (3) McKenzie v. Alameda, Case No. CV-02-07551 (C.D. Cal. Dec. 10, 2002) (dismissed), combined with Ninth Circuit dismissal in McKenzie v. Alameda, Case No. 03-55221 (9th Cir. 2003); (4) McKenzie v. Woodford, Case No. 1:06-cv-00062-OWW-LJO (E.D. Cal. Dec. 23, 2006) (dismissed); and (5) McKenzie v. Woodford, Case No. 1:06-cv-01490-AWI-SMS (E.D. Cal. Feb. 15, 2007) (dismissed). (Defs.' Mot. Revoke & Dismiss Attach. #1 Mem. P. & A. 3-5, ECF No. 20; see also id. Attach. #2 Req. Judicial Notice 1-60.) 8 12cv1602 BEN (RBB) 1 35.) This argument is unpersuasive, however, as McKenzie has 2 demonstrated in his Complaint that he can adequately articulate the 3 facts to support his causes of action. 4 08cv1498 JM(RBB), 2010 U.S. Dist. LEXIS 51782, at *1-3 (S.D. Cal. 5 May 26, 2010) (finding no exceptional circumstance due to factual 6 complexity because plaintiff grasped "the legal issues involved" 7 and was able to "adequately set[] forth a factual basis for his 8 claims[]"); Shields v. Davis, No. C 07-0157 RMW (PR), 2008 U.S. 9 Dist. LEXIS 90687, at *2-3 (N.D. Cal. Oct. 27, 2008) (denying See Pough v. Almager, No. 10 motion for appointment of counsel because the case was not 11 particularly complex). 12 possesses a sufficient understanding of his claims, the facts, and 13 the law to continue to represent himself. 14 McKenzie is an experienced litigant. He McKenzie further asserts that he has suffered "periodic 15 denials of access to the facility's law library . . . ." 16 Appointment Counsel 5, ECF No. 35.) 17 does not guarantee a prisoner unlimited access to a law library. 18 Prison officials of necessity must regulate the time, manner, and 19 place in which library facilities are used." 20 State Bd. of Corr., 776 F.2d 851, 858 (9th Cir. 1985) (citation 21 omitted). 22 Motion Revoke and Dismiss [ECF No. 22], as well as a Motion for 23 Clerk's Entry of Default [ECF No. 29], and a Reply to Defendant 24 Nutt's Opposition to Plaintiff's Motion for Clerk's Entry of 25 Default [ECF No. 32]. 26 complete with citations to relevant authority. 27 Appointment Counsel 7-8, ECF No. 35.) 28 he does not have reasonable access to a law library or other means (Mot. "However, the Constitution Lindquist v. Idaho Plaintiff has timely filed an Opposition to Defendants' McKenzie also filed the current Motion, 9 (See Mot. Plaintiff has not shown that 12cv1602 BEN (RBB) 1 of conducting legal research, or that he is subjected to burdens 2 beyond those ordinarily experienced by pro se plaintiffs. 3 Finally, McKenzie maintains that he suffers from open-angle 4 glaucoma, for which he has undergone several surgeries, and from 5 which he has lost the ability to see with his right eye. 6 5.) 7 impediment in the preparation of documents . . . ." 8 McKenzie has not demonstrated how his physical infirmity impairs 9 his ability to proceed pro se. (Id. at Plaintiff urges that his medical condition has "become a major (Id.) Based on the filings to date, 10 Plaintiff appears to be able to adequately present his claims. 11 Jones v. Frazesn, No. 2:07-cv-02769 RCT, 2009 U.S. Dist. LEXIS 12 49639, at *2-3 (E.D. Cal. June 1, 2009) (finding no exceptional 13 circumstance when plaintiff claimed his pain medication impaired 14 his ability to read and write). 15 See McKenzie has not established that he is unable to proceed as a 16 pro se litigant. 17 13 (finding no exceptional circumstances, in part, because 18 plaintiff was able to submit adequate documentation and motion 19 work); see also Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 20 (9th Cir. 2004) (reviewing district court's denial of appointed 21 counsel for abuse of discretion and explaining that a finding of 22 exceptional circumstances justifying appointment of counsel 23 requires an evaluation of plaintiff's ability to articulate his 24 claims); Plummer v. Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996) 25 (holding district court did not abuse its discretion in denying 26 plaintiff appointed counsel, in part because plaintiff adequately 27 filed a complaint and other pretrial materials). 28 situation is similar to that of other incarcerated pro se See Harris, 2009 U.S. Dist. LEXIS 68786, at *11- 10 Plaintiff's 12cv1602 BEN (RBB) 1 plaintiffs. 2 adequately present his claims. 3 68786, at *11-13; Agyeman, 390 F.3d at 1103; Plummer, 87 F.3d at 4 1033. 5 McKenzie has demonstrated that he is able to See Harris, 2009 U.S. Dist. LEXIS Plaintiff has not established exceptional circumstances that 6 entitle him to appointed counsel. 7 The Court denies McKenzie's request without prejudice as neither 8 the interests of justice nor exceptional circumstances warrant 9 appointment of counsel at this time. 10 LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); see also Terrell, 935 F.2d at 1017. III. 11 CONCLUSION For the above reasons, Plaintiff Gustavo McKenzie's Motion for 12 13 See Agyeman, 390 F.3d at 1103. Appointment of Counsel is DENIED. IT IS SO ORDERED. 14 15 16 DATED: April 16, 2013 17 18 cc: _____________________________ Ruben B. Brooks United States Magistrate Judge Judge Benitez All parties of record 19 20 21 22 23 24 25 26 27 28 11 I:\Chambers Brooks\CASES\_1983\PRISONER\MCKENZIE1602\Order re Mot for Counsel.wpd 12cv1602 BEN (RBB)
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