Singleton v. Kernan et al, No. 3:2016cv02462 - Document 115 (S.D. Cal. 2018)
Court Description: ORDER Denying 107 Motion for Appointment of Counsel and Reconsideration of Order Dismissing Former Defendant. The Court denies Singleton's requests for appointment of counsel and for leave to amend the pleadings or reconsideration of dismissal of SDRL. Signed by Judge Cynthia Bashant on 5/18/2018. (All non-registered users served via U.S. Mail Service)(rmc)
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 KELVIN X. SINGLETON, 13 Case No. 16-cv-02462-BAS-NLS Plaintiff, 14 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND RECONSIDERATION OF ORDER DISMISSING FORMER DEFENDANT v. 15 16 SCOTT KERNAN, et al. 17 [ECF No. 107] Defendants. 18 19 20 Presently before the Court is a motion filed by Plaintiff Kelvin Singleton which 21 seeks (1) appointment of counsel and (2) leave to file a third amended complaint to 22 add San Diego Reference Laboratory (“SDRL”) as a defendant once more or, in the 23 alternative, reconsideration of dismissal of SDRL. (ECF No. 107.) For the reasons 24 herein, the Court denies both of Plaintiff’s requests. 25 I. BACKGROUND 26 Plaintiff Singleton is incarcerated at the California State Prison-Sacramento, 27 located in Represa, California. On September 29, 2016, he filed a Section 1983 case 28 related to events that occurred while he was incarcerated at the R.J. Donovan –1– 16cv2462 1 Correctional Facility (“RJD”) in San Diego, California. (ECF No. 1.) He sought 2 leave to amend the complaint to add SDRL as a defendant, which this Court granted. 3 (ECF Nos. 8, 29.) A First Amended Complaint (“FAC”) was subsequently filed. 4 (ECF No. 32.) 5 In the FAC, Plaintiff alleged that false rule violation reports were issued 6 against him after he spoke out against RJD officers, and that after he asserted the 7 reports were false, he was subjected to retaliation and a larger conspiracy by RJD 8 officials and the SDRL. (Id.) Plaintiff’s specific allegations against SDRL concerned 9 a June 5, 2015 toxicology report from the lab concerning a urinalysis test of a sample 10 from him, which he claimed lacked a collector’s I.D. number and had information 11 crossed out. (Id. at 12.) He alleged that he sent multiple letters to SDRL regarding 12 these issues to which SDLR did not respond and, based on the non-response, “the lab 13 conspired with the named defendants to retaliate” against him “by concealing 14 information.” (Id.) SDRL moved for dismissal and summary judgment on Plaintiff’s 15 claims against it. (ECF Nos. 50–51.) 16 On December 15, 2017, Judge Stormes issued a Report and Recommendation 17 (R&R), which included a recommendation to grant dismissal of SDRL on the ground 18 that Plaintiff had failed to sufficiently plead SDRL’s involvement in a conspiracy 19 under Section 1983. (ECF No. 85 at 27–29.) Judge Stormes observed that: (1) the 20 allegations in Plaintiff’s FAC regarding SDRL differed significantly from the 21 allegations he proposed when he sought leave to amend his initial complaint to add 22 SDRL; (2) SDRL’s toxicology report alerted Plaintiff to the very issues with Plaintiff 23 now alleges show falsification; and (3) SDRL’s failure to respond to his letters did 24 not give rise to an inference of an agreement between SDRL and the RJD officers to 25 engage in a conspiracy. (Id.) Judge Stormes recommended dismissal without leave 26 to amend because Plaintiff had already been provided leave to amend specifically to 27 add SDRL as a defendant, the allegations he added failed to state a claim, and any 28 further amendment would delay the progress of the case given Plaintiff’s repeated –2– 16cv2462 1 amendments to his pleadings. (Id. at 30.) Plaintiff objected to the recommendation 2 on the ground that he could not know if an identification I.D. was withheld from the 3 SDRL “absent any discovery” and that SDRL’s failure to respond to his letters could 4 show a meeting of the minds sufficient to allege a conspiracy. (ECF No. 88 at 6.) 5 This Court overruled Plaintiff’s objection to the R&R and adopted the R&R’s 6 recommendation to dismiss SDRL without leave to amend. (ECF No. 89 at 13–14.) 7 Plaintiff appealed the dismissal of SDRL among other issues resolved in the Court’s 8 adoption of the R&R (ECF No. 91), which the Ninth Circuit dismissed on March 28, 9 2018 for lack of jurisdiction (EF No. 101). Plaintiff now seeks reconsideration of 10 SDRL’s dismissal. 11 Throughout the litigation, Plaintiff has filed various motions for appointment 12 of counsel. He initially moved for appointment of counsel on August 28, 2017. (ECF 13 No. 65.) On September 26, 2017, Judge Stormes denied Plaintiff’s request because 14 he failed to show the “exceptional circumstances” required to permit appointment of 15 counsel under 28 U.S.C. §1915(e)(1). (ECF No. 70.) Singleton filed a motion for 16 reconsideration of the denial of his first motion for appointment of counsel on 17 October 10, 2017. (ECF No. 83.) This Court construed the motion as an objection to 18 Judge Stormes’s denial and overruled it on the ground that there was no clear error. 19 (ECF No. 87.) Plaintiff now moves again for appointment of counsel. 20 II. DISCUSSION 21 A. Reconsideration of Dismissal of SDRL Without Leave to Amend 22 Plaintiff requests that the Court reconsider its decision to dismiss SDRL as a 23 defendant without leave to amend. (ECF No. 107.) The Court finds that Plaintiff has 24 failed to make a sufficient showing that the Court should permit him leave to amend. 25 Normally, a court “should freely give leave when justice so requires.” FED. R. 26 CIV. P. 15(a)(2). In assessing when leave to amend should be provided, courts 27 consider five factors: (1) bad faith, (2) prejudice to the opposing party, (3) futility, 28 (4) undue delay, and (5) whether plaintiff has previously amended her complaint. –3– 16cv2462 1 Western Shoshone Nat. Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991). But on 2 a motion to reconsider, these considerations are filtered through a more restrictive 3 standard. On a motion for reconsideration, relief should be granted only “if the 4 district court (1) is presented with newly discovered evidence, (2) committed clear 5 error or [its] initial decision was manifestly unjust, or (3) if there is an intervening 6 change in controlling law.” School Dist. No. 1J, Multnomah Ct.y v. ACandS Inc., 5 7 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 114 S. Ct. 2742 (1994). A motion to 8 reconsider must provide a court with valid grounds for reconsideration by: (1) 9 showing some valid reason why the court should reconsider its prior decision, and 10 (2) setting forth facts or law of a strongly convincing nature to persuade the court to 11 reverse its prior decision. Frasure v. United States, 256 F. Supp. 2d 1180, 1183 (D. 12 Nev. 2003). “Whether or not to grant reconsideration is committed to the sound 13 discretion of the court.” Navajo Nation v. Confederated Tribes & Bands of the 14 Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters. v. 15 Estate of Bishop, 229 F.3d 877, 883 (9th Cir. 2000)). 16 Plaintiff’s motion for reconsideration is premised on new evidence. He asserts 17 that a “new revelation stated by a defendant has implicated the SDRL in th[e] 18 retaliatory scheme.” (Id. at 3.) This “new revelation” from “the mountainous 19 documents proffered by Defendants” is Defendant Sanchez’s statement that 20 “[a]nother clerical error which was noted on the toxicology report was the date 21 collected 5-3-16. This is an error on the laboratory . . .” (Id. at 4 (as quoted by 22 Plaintiff in his motion).) Plaintiff asserts that if Sanchez can make this observation 23 about the SDRL report, “a jury can infer something was/is amiss between the prison 24 and lab.” (Id.) He claims there were “entirely too many ‘errors’ in this report in 25 which Plaintiff was found guilty to say a conspiracy to retaliate did not exist.” (Id.) 26 The Court finds that this “new evidence” is insufficient to meet the standard for a 27 favorable reconsideration of the Court’s prior dismissal of SDRL and fails on the 28 merits. –4– 16cv2462 1 As an initial matter, Plaintiff has failed to present evidence of a “strongly 2 convincing nature” to persuade the Court to reconsider its dismissal of SDRL without 3 leave to amend. Plaintiff concedes that he has been provided with substantial 4 discovery from Defendants. Yet his request is premised on a single characterization 5 from Defendant Sanchez about the toxicology report received from SDRL. When 6 this Court dismissed SDRL without leave to amend, the Court specifically noted 7 Plaintiff’s objection that he needed discovery to show why SDRL was a part of the 8 alleged conspiracy against him and found that it was “unavailing.” (ECF No. 13.) 9 Even with the discovery provided to him, Plaintiff has identified only the slenderest 10 of factual reeds to support his claim that he should be permitted to name SDRL as a 11 defendant once more. This cannot support a request for reconsideration. 12 Even considering the “new revelation,” it fails to overcome the reasoning 13 underlying dismissal of SDRL. This Court advised Plaintiff of the pleading standards 14 for such a claim when initially permitting him leave to amend his pleadings to add 15 SDRL. (ECF No. 29 at 3.) In relevant part, a plaintiff must plead the existence of 16 an express or implied agreement to deprive plaintiff of his constitutional rights. 17 Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010) (citations omitted); see Fonda v. 18 Gray, 707 F.2d 435, 438 (9th Cir. 1983). With respect to a private actor like SDRL, 19 there must be allegations showing that it “willfully participate[d] in joint action with 20 state officials to deprive others of constitutional rights.” United Steelworkers of Am. 21 v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir. 1989). 22 Under this standard, the clerical error Plaintiff points to here is an insufficient 23 basis to make plausible his claim that SDRL was involved in a conspiracy against 24 him. A clerical error, without more, is by its nature an unintentional error. It is 25 evident from Defendant Sanchez’s report, attached as an appendix to Plaintiff’s 26 motion, that the error stemmed from SDRL entering the collection date as the date it 27 received Plaintiff’s urine sample. This sort of error simply does not give rise to the 28 inference of SDRL’s involvement in a conspiracy because it does not plausibly show –5– 16cv2462 1 willful participation by SDRL. See, e.g., Sutton v. Providence St. Joseph Med. Ctr., 2 192 F.3d 826 (9th Cir. 1999) (“[T]he plaintiff must establish some . . . nexus 3 sufficient to make it fair to attribute liability to the private entity as a governmental 4 actor.”); Tanasescu v. State Bar of Cal., No. SACV 11-00700-CJC (MAN), 2012 WL 5 1401294, at *19 (C.D. Cal. Mar. 26, 2012) (dismissing Section 1983 claim against 6 private actor when there were no allegations of the requisite willful participation to 7 bring a conspiracy claim). Moreover, to the extent Plaintiff claims that Defendant 8 Sanchez’s characterization of SDRL’s conduct makes Plaintiff’s rejected conspiracy 9 claim against SDRL plausible, he is wrong. Bell Atl. Corp. v. Twombly, 550 U.S. 10 544, 555 (2007) (“[T]he pleading must contain something more . . . than . . . a 11 statement of facts that merely creates a suspicion [of] a legally cognizable right of 12 action.”). Here, Plaintiff relies on Defendant Sanchez’s characterization to create a 13 mere suspicion of wrongful conduct by SDRL; this is not a proper basis for bringing 14 a private actor with no plausible involvement in the alleged conspiracy into Plaintiff’s 15 Section 1983 litigation against the RJD officers. 16 Plaintiff also asserts that there were “too many errors” in the report such that 17 there could be nothing else but a conspiracy. Plaintiff is ostensibly referring to 18 SDRL’s observation in its report that the sample it received for Plaintiff was in a 19 damaged condition and its label was missing information. (ECF No. 85 at 29.) To 20 the extent Plaintiff contends that the clerical error moves his conspiracy claim against 21 SDRL past the point of conceivability to plausibility when taken in tandem with the 22 other issues with his urine sample, the Court rejects this argument. 23 The problem for Plaintiff is that the Court has already addressed the 24 plausibility of Plaintiff’s conspiracy claim against SDRL based on these issues. 25 “Motions for reconsideration should not be used to ask the court ‘to rethink what the 26 court had already thought through—rightly or wrongly’ or to reiterate arguments 27 previously raised.” Garber v. Embry-Riddle Aeronautical Univ., 259 F. Supp. 2d 28 979, 982 (D. Ariz. 2003) (quoting In re Agric. Research & Tech. Group, 916 F.2d –6– 16cv2462 1 528, 542 (9th Cir. 1990)); see also Marlyn Nutraceuticals, Inc. v. Mucos Pharma 2 GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). As Judge Stormes expressly 3 observed, it was SDRL’s toxicology report that identified various issues with the 4 urine sample it received for Plaintiff from RJD, on which Plaintiff relies for 5 allegations of falsity. (Id.) Judge Stormes determined that Plaintiff’s allegations only 6 showed tampering with the sample between the time Plaintiff provided the sample 7 and when SDRL received it, which “do[es] not give rise to an inference of any 8 agreement between the named Defendants and SDRL.” (Id.) Because Plaintiff’s 9 reliance on the clerical error does not make his claim against SDRL plausible, 10 Plaintiff is left with nothing more than requesting that the Court reconsider what it 11 has already decided with respect to these other “errors”. The Court will not do so. 12 As the Court has already advised Plaintiff, “complaints cannot be used as a fishing 13 expedition” to substantiate claims that lack plausibility. Alberts v. BAC Home Loans 14 Servicing, L.P., No. 11-6304-HO, 2012 WL 96570 at *1 (D. Or. Jan. 10, 2012). 15 Plaintiff has offered nothing which shows that reconsideration of the dismissal of 16 SDRL is warranted. 17 Lastly, the Court concludes that further amendment of the pleadings is 18 improper. Plaintiff has previously filed or requested numerous amendments to the 19 pleadings. (ECF Nos. 8, 27, 32, 38.) He has had one request to amend to add new 20 defendants denied based on lack of plausible allegations and his subsequent request 21 for reconsideration was also denied. (ECF No. 38, 71, 74, 77.) Plaintiff was not 22 permitted leave to amend his claim against SDRL on the ground that amendment 23 would be futile. (ECF No. 85, 89.) His claims against all but two Defendants have 24 been dismissed based on the Court’s resolution of multiple motions to dismiss and 25 for summary judgment. (ECF Nos. 34, 36, 50, 51, 85, 89) The remaining Defendants 26 have filed an answer. (ECF No. 90.) These facts place Plaintiff’s request to amend 27 squarely in the futility, prejudice, and prior amendment factors a court considers 28 when deciding whether to permit leave to amend the pleadings. Western Shoshone –7– 16cv2462 1 Nat. Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991). These factors here weigh 2 sharply against permitting further amendment and the Court will not permit further 3 amendment. 4 B. Appointment of Counsel 5 Plaintiff moves for appointment of counsel once more under 28 U.S.C. 6 §1915(e)(1). (ECF No. 107 at 2.) The instant request is related to Defendants’ 7 assertion that discovery information requested by Plaintiff is confidential material 8 that should not be disclosed to Plaintiff because he is a current inmate. (Id.) Plaintiff 9 has filed a motion for in-camera review to determine the validity of Defendants’ 10 argument, which is pending before Judge Stormes. (ECF No. 105.) Here, he claims 11 that Judge Stormes cannot argue on his behalf in conducting the in camera review, 12 which makes the case complex. (ECF No. 107 at 2.) The Court finds that Plaintiff 13 has not shown he is entitled to a court order for appointment of counsel. 14 To warrant appointment of counsel, there must be a showing of “exceptional 15 circumstances.” See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 16 2004) (internal quotations omitted). 17 ‘likelihood of success on the merits and the ability of the plaintiff to articulate his 18 claims pro se in light of the complexity of the legal issues involved.’ Neither of these 19 issues is dispositive and both must be viewed together before reaching a decision.” 20 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn v. 21 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). This requires “an evaluation of both the 22 Singleton is unable to show a likelihood of success on the merits. He asserts 23 that he has met the likelihood of success prong because if he is not entitled to see the 24 confidential materials at issue in his motion for in-camera review, then a lawyer can 25 do so because a lawyer makes an oath not to disseminate confidential information. 26 (ECF No. 107 at 3.) It is unclear to the Court how this assertion satisfies the 27 likelihood of success on the merits prong because it presupposes that his motion for 28 in-camera review lacks merit, i.e. that the information designated as confidential has –8– 16cv2462 1 been properly designated as such. Moreover, the likelihood of success on the merits 2 prong concerns “the merits of the case,” not the merits of a discrete litigation issue. 3 See Hoskins v. CMS Med, No. 1:13–cv–00264–EJL, 2014 WL 869456, at *1 (D. 4 Idaho Mar. 5, 2014) (citing Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)). 5 Plaintiff makes no argument regarding the likelihood of success on the merits of the 6 case and the Court will not create one for him now. 7 Singleton fares no better on the legal complexity issue. He argues that he has 8 satisfied the legal complexity prong because the “[D]efendants have made the legal 9 issue complex by claiming their retaliatory documents are confidential and 10 privileged.” (ECF No. 107 at 3.) As an initial matter, this Court is not aware of a 11 motion for appointment for counsel being granted solely with respect to the asserted 12 complexity of a single motion. Even were that proper, as Judge Stormes and this 13 Court have already observed, Mr. Singleton “has a good grasp of basic litigation 14 procedure and has been able to adequately articulate his claims.” (ECF No. 70 at 3; 15 ECF No. 87.) Plaintiff has represented himself at least four previous times in this 16 district, at least twice in the Northern District of California, at least three times in the 17 Central District of California, and has appealed rulings to the Ninth Circuit on ten 18 separate occasions. (Id. at 4 n.3.) When a pro se civil rights plaintiff shows he has 19 a good grasp of basic litigation procedure and has been able to adequately articulate 20 his claims, he does not demonstrate exceptional circumstances to warrant appointing 21 counsel. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). With respect to 22 Plaintiff’s motion for in-camera review, Plaintiff’s very filing of the motion reflects 23 his knowledge regarding how to properly obtain information from an opposing party 24 which he believes has been improperly designated as confidential. (ECF No. 105.) 25 A review of that motion shows that Plaintiff is able to cogently articulate why he 26 believes that he should either be permitted to see the document designated as 27 confidential or receive a redacted copy. (Id. at 3.) Although he could fail on the 28 merits, that possibility is not an exceptional circumstance warranting appointment of –9– 16cv2462 1 counsel. Accordingly, the Court denies Singleton’s request for appointment of 2 counsel. 3 III. CONCLUSION & ORDER 4 For the foregoing reasons, the Court DENIES Singleton’s requests for 5 appointment of counsel and for leave to amend the pleadings or reconsideration of 6 dismissal of SDRL. (ECF No. 107.) 7 IT IS SO ORDERED. 8 9 DATED: May 18, 2018 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 10 – 16cv2462
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