Arellano v. Officer Hodge et al, No. 3:2014cv00590 - Document 208 (S.D. Cal. 2018)
Court Description: ORDER Denying 195 , 197 Motions for Appointment of Counsel. Signed by Magistrate Judge Jill L. Burkhardt on 7/30/2018. (All non-registered users served via U.S. Mail Service)(mpl)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 Case No.: 14-cv-590 JLS (JLB) RAUL ARELLANO, JR. , ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL Plaintiff, v. [ECF Nos. 195, 197] OFFICER HODGE, et al., 15 Defendants. 16 17 Before the Court is Plaintiff Raul Arellano, Jr.’s Motions to Appoint Counsel. (ECF 18 Nos. 195, 197.) Plaintiff moves the Court, for the fifth and sixth time, for appointment of 19 counsel. (Id.) For the reasons stated below, Plaintiff’s motions are DENIED. 20 I. 21 Plaintiff is a state prisoner proceeding pro se and in forma pauperis, alleging civil 22 rights violations pursuant to 42 U.S.C. § 1983 against Defendants J. Chau, M. Glynn, D. 23 Hodge, Dr. Sedighi, K. Seeley, Nurse Velardi, and L. Zamora. (ECF No. 126.) On 24 November 16, 2017, Defendants filed a Motion for Summary Judgment. (ECF No. 164.) 25 After the briefing on Defendants’ Motion for Summary Judgment was complete, Plaintiff 26 filed the two requests for appointment of counsel presently before the Court. On April 9, 27 2018, Plaintiff filed a Motion to Appoint Counsel (ECF No. 195), stating that he was in the 28 suicide infirmary as a result of recently attempting suicide and did not have access to his BACKGROUND 1 14-cv-590 JLS (JLB) 1 legal documents. (Id. at 1.) Plaintiff stated that although he has been able to file motions 2 and oppose Defendants’ motions in this case, his health issues have made it very difficult. 3 (Id.) Plaintiff notes that he has filed several motions for extensions of time and has missed 4 discovery deadlines in this case. (Id.) 5 On April 24, 2018, Plaintiff filed another Motion to Appoint Counsel. (ECF No. 6 197.) In this Motion, Plaintiff represented that he had again attempted suicide, and in this 7 attempt, had sustained a concussion resulting in “blindness.” (Id. at 1.) Plaintiff stated that 8 he saw an optometrist who said that “they don’t have a cure” for Plaintiff’s blindness. (Id.) 9 Plaintiff represented that “[r]ight now am just writing following a blurr [sic] and hoping 10 my hand does a good job on writing it.” (Id.) Plaintiff argued that if he was not given an 11 attorney under these circumstances, he would be unable to file motions or read Defendants’ 12 motions. (Id.) 13 On May 8, 2018, out of concern for the effect Plaintiff’s asserted condition may have 14 on his ability to litigate this case, the Court ordered Supervising Deputy Attorney General 15 Monica Anderson to file a response to Plaintiff’s Motion to Appoint Counsel. (ECF No. 16 198.) On May 21, 2018, Defendants filed a Status Report indicating that Plaintiff had been 17 referred to an outside ophthalmologist (whom he had not yet seen) because “Plaintiff’s 18 medical doctor and optometrist could find no objective reason for Plaintiff’s reports of 19 vision impairment.” (ECF No. 199.) The Status Report further represented that Plaintiff 20 was recently designated as a vision-impaired inmate and will thus be eligible to use a 21 machine in the law library that will magnify text or audibly read text, use a whole-page 22 magnifier, obtain a pocket magnifier, and work with a skilled inmate worker available on 23 the yard to read text to Plaintiff and to act as a scribe in preparing written documents. (Id. 24 at 4.) At the Court’s request, Defendants filed a Supplemental Status Report on May 25, 25 2018, following Plaintiff’s appointment with the ophthalmologist. (ECF No. 202.) The 26 Supplemental Report indicated that the ophthalmologist found that Plaintiff’s reported 27 abnormalities in “vision [did] not correlate [with the] eye exam.” (ECF No. 202-1.) 28 /// 2 14-cv-590 JLS (JLB) 1 Plaintiff was scheduled for a follow up appointment two weeks later to further evaluate his 2 vision condition. (Id.) 3 On May 31, 2018, Plaintiff filed a reply to Defendants’ status reports. (ECF No. 4 204.) The reply stated that another inmate wrote what Plaintiff dictated, the other inmate 5 did not “know law,” and the other inmate did not know of any inmate that would help 6 another inmate with legal work without a charge. (Id. at 1.) Plaintiff represented that the 7 accommodations Defendants state are available to him are not helpful because “no inmate 8 or librarian have the law knowledge to be competent enough in replying or responding to 9 motions,” and a magnifying glass will not clear his blurry vision. (Id. at 5-6.) Plaintiff 10 filed a second reply to Defendants’ status reports on June 1, 2018. (ECF No. 206.) This 11 reply argues that Plaintiff’s vision issues are the result of “a brain problem,” not his 12 diabetes, which is why the eye exam did not corroborate Plaintiff’s reported vision loss. 13 (Id.) 14 II. 15 There is no constitutional right to the appointment of counsel in § 1983 cases. 16 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, the Ninth Circuit has 17 held that “a court may under ‘exceptional circumstances’ appoint counsel for indigent civil 18 litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th 19 Cir. 2009) (quoting Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)). 20 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 21 likelihood of success on the merits as well as the ability of the petitioner to articulate his 22 claims pro se in light of the complexity of the legal issues involved.’” Id. (quoting 23 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Neither of these considerations is 24 dispositive and instead must be viewed together. Id. (quoting Wilborn v. Escalderon, 789 25 F.2d 1328, 1331 (9th Cir. 1986)). LEGAL STANDARDS 26 III. 27 The exceptional circumstances required to appoint counsel under § 1915(e)(1) are 28 not present here. Plaintiff fails to satisfy the first factor of the exceptional circumstances ANALYSIS 3 14-cv-590 JLS (JLB) 1 test, likelihood of success on the merits. Plaintiff does not present sufficient evidence for 2 the Court to find that he is likely to succeed at trial. Upon a thorough review of all materials 3 submitted by the parties for Defendants’ Motion for Summary Judgment, the Court finds 4 that there is no evidence supporting Plaintiff’s Fourteenth Amendment claims, and 5 insufficient evidence for the Court to conclude that Plaintiff is likely to succeed on the 6 remainder of his claims. Although Plaintiff may present sufficient evidence through his 7 own declarations to create a genuine issue of material fact and survive summary judgment 8 on some of his Eighth Amendment claims, he has not presented evidence that would allow 9 the Court to conclude that he is likely to succeed at trial. See Mahon v. Prunty, 107 F.3d 10 16 (9th Cir. 1997) (“Even the portion of [plaintiff’s] claims that survived summary 11 judgment was supported only by his declaration. He had little likelihood of success on the 12 merits.”). 13 As to the second factor, the ability of Plaintiff to articulate his claims pro se in light 14 of the complexity of the legal issues involved, Plaintiff has consistently demonstrated his 15 ability to litigate his claims in this case. Where a pro se civil rights plaintiff shows that he 16 understands basic litigation procedure and has been able to articulate his claims adequately, 17 he does not demonstrate the exceptional circumstances required for the appointment of 18 counsel. See Palmer, 560 F.3d at 970. Further, federal courts employ procedures that are 19 highly protective of a pro se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 20 (1972) (per curiam) (holding that the pleadings of a pro se inmate must be held to less 21 stringent standards than formal pleadings drafted by lawyers). Where a plaintiff appears 22 pro se in a civil rights case, the court must construe the pleadings liberally and draw 23 reasonable factual inferences in the plaintiff’s favor. Mckinney v. De Bord, 507 F.2d 501, 24 504 (9th Cir. 1974); see also Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 25 623 (9th Cir. 1988). Thus, as long as a pro se litigant is able to articulate his claim in light 26 of the complexity of the issues, the “exceptional circumstances” that might support the 27 appointment of counsel do not exist. 28 /// 4 14-cv-590 JLS (JLB) 1 Here, Plaintiff has not demonstrated an inability to articulate his claims without the 2 assistance of counsel. Plaintiff asserts that his blurred vision prevents him from reading 3 and writing documents, thus necessitating the assistance of counsel. (ECF Nos. 197, 204.) 4 However, throughout these proceedings Plaintiff has been able to file appropriate motions 5 and responses, discuss case law with Defendants’ attorney, and correspond with the Court 6 and Defendants’ counsel. 7 pleadings with the Court, all of which are well organized and clearly explain the relief 8 Plaintiff seeks and his arguments for that relief. (ECF Nos. 197, 204, 206.) Further, the 9 prison has afforded Plaintiff reasonable accommodations including various magnifiers, a 10 machine that can audibly read text to Plaintiff, and an ADA skilled inmate-worker who is 11 available to read documents to Plaintiff and act as a scribe. (ECF No. 199 at 4.) Plaintiff’s 12 arguments that the persons available to assist him do not have the level of legal knowledge 13 Plaintiff desires is beside the point; these personnel were made available to Plaintiff to 14 assist him in reading and writing materials, not to act as his attorney. Plaintiff is able to 15 articulate his claims without the assistance of counsel and fails to meet the second 16 “exceptional circumstances” factor at this stage of the case. 17 Following Plaintiff’s reported vision loss, he filed three Viewing these Wilborn factors together, Plaintiff has not sufficiently demonstrated 18 “exceptional circumstances” necessitating the appointment of counsel.1 19 /// 20 /// 21 /// 22 /// 23 /// 24 25 26 27 28 This Order denies Plaintiff’s request for counsel without prejudice and does not preclude Plaintiff from filing a motion for appointment of counsel in the future. Furthermore, if Judge Sammartino finds that any of Plaintiff’s claims survive summary judgment and should proceed to trial, Plaintiff may be appointed counsel pursuant to General Order 596 (“[U]nless the Court determines based upon the above factors that counsel is not necessary, the Court may appoint counsel for purposes of trial as a matter of course in each prisoner civil rights case where summary judgment has been denied.”). 1 5 14-cv-590 JLS (JLB) 1 IV. 2 For the reasons discussed above, the Court DENIES Plaintiff’s Motions for 3 4 5 CONCLUSION Appointment of Counsel (ECF Nos. 195, 197.) IT IS SO ORDERED. Dated: July 30, 2018 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 14-cv-590 JLS (JLB)
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