Marcel Ford v. Unknown ( 2024 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 MARCEL FORD, Case No. CV 21-0088-DMG (MAR) 11 Plaintiff, 12 v. ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED 13 STATES MAGISTRATE JUDGE UNKNOWN, et al., 14 Defendants. 15 16 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, the relevant records 17 on file, and the Report and Recommendation of the United States Magistrate Judge. The Court 18 has engaged in de novo review of those portions of the Report to which Plaintiff Marcel Ford has 19 objected. 20 The Report recommends the denial of Ford’s Motions for Summary Judgment and the grant 21 of Defendants’ Motion for Summary Judgment. For the following reasons, Ford’s objections to 22 the Report do not warrant a change to the Magistrate Judge’s findings or recommendations. 23 Ford objects that the grievance he filed on September 29, 2020, which preceded his being 24 attacked by other inmates, was not accurately characterized. [Doc. # 205 at 2.] Specifically, Ford 25 objects that it is “100% not true” that his grievance alleged he “observed” the staff distributing or 26 “selling” drugs throughout the prison. Id. at 2, 5. To the contrary, the Report accurately 27 characterized the grievance. In his grievance, which Ford entitled “Staff’s distribution[s] of hard 1 selling pushing [and] a lot of use.” [Doc. # 128 at 2.] The Report therefore accurately describes 2 the grievance as alleging Ford had “observed the staff distributing drugs throughout CCI- 3 Tehachapi.” [Doc. # 203 at 16.] 4 Ford objects that he should receive some compensation for Defendant M. Negrete’s 5 “negligence” when he shot Ford twice with sponge rounds while Ford was being attacked by other 6 inmates. [Doc. # 205 at 4, 6.] As the Report found, however, Ford admitted he “was focused on 7 defending himself and did not see what Negrete was doing.” [Doc. # 203 at 25.] Ford therefore 8 failed to undermine the Report’s finding that he submitted “no evidence to support his conclusory 9 allegation that Defendant Negrete acted with malicious and sadistic intent to cause harm.” Id. at 10 25. 11 Ford seeks to introduce “more evidence to this Court.” [Doc. # 205 at 5.] A district court 12 is not required to consider facts presented for the first time in objections to a Report and 13 Recommendation. See United States v. Howell, 231 F.3d 615, 623 (9th Cir. 2000). Even if the 14 evidence were to be considered, however, it would not warrant a change to the Report’s findings 15 and recommendation. The evidence consists of medical treatment records for an injury to Ford’s 16 left hand with a rubber bullet. [Doc. # 205 at at 8–14.] This evidence does not undermine the 17 Report’s finding that, even if Negrete did shoot Ford, the evidence of the shooting nonetheless 18 “failed to raise a genuine dispute as to whether Negrete acted with malicious or sadistic intent.” 19 Id. at 26 n.5. 20 Ford requests the right to subpoena the physicians who treated his left hand. [Doc. # 205 21 at 6.] But the deadline for completion of discovery has elapsed. [Doc. # 143 at 1–2.] Moreover, 22 Ford has not established the relevance of the subpoenas, which “is the essential predicate for all 23 discovery.” Sepulveda v. City of Whittier, 2022 WL 20804352, at *4 (C.D. Cal. Feb. 16, 2022) 24 (citing cases). Ford has not suggested how the physicians could produce any facts that would be 25 relevant to the issue of whether Defendant Negrete acted with malicious or sadistic intent. 26 Finally, Ford moves for the appointment of counsel. There is no constitutional right to 27 appointed counsel in this action. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). 1 | In “exceptional circumstances,” however, a district court may appoint counsel for indigent civil 2 | litigants pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. § 1915(d)). Rand v. Roland, 113 3 | F.3d 1520, 1525 (9th Cir. 1997) (internal citation and quotation marks omitted), overruled on other 4 | grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether exceptional circumstances exist, the 5 | Court must evaluate both “the likelihood of success on the merits [and] the ability of the [plaintiff] 6 | to articulate his claims pro se in light of the complexity of the legal issues involved.” Wilborn v. 7 | Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (internal citation and quotation marks omitted). 8 | Ford’s objections and underlying claims lack merit for the reasons addressed more fulsomely 9 | above and in the Report. Nor is he so unable to articulate his claims pro se as to justify appointment 10 | of counsel. In short, Ford does not show exceptional circumstances that justify the appointment 11. | of counsel. 12 The Court accepts the findings and recommendation of the Magistrate Judge. 13 IT IS THEREFORE ORDERED that Ford’s Motions for Summary Judgment [Doc. ## 14 | 125, 133, 161] are DENIED, Defendants’ Motion for Summary Judgment [Doc. # 184] is 15 | GRANTED, and Ford’s Motion for Appointment of Counsel [Doc. # 204] is DENIED. Ford’s 16 | Requests for Interrogatories and Admissions [Doc. ## 190, 191] are DENIED as moot. 17 | DATED: April 29, 2024 18 20 Chief United States District Judge 21 22 23 24 25 26 27 28