Melvin R. Arrant v. R. Velasquez ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 MELVIN R. ARRANT, ) NO. CV 18-6871-JVS (AGR) ) 11 Plaintiff, ) ) ORDER ACCEPTING IN PART 12 v. ) FINDINGS AND RECOMMENDATIONS ) OF UNITED STATES 13 ) MAGISTRATE JUDGE R. VELASQUEZ, et al. ) 14 ) Defendants. ) 15 ) 16 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 17 Complaint, records on file, the Report and Recommendation of the United States 18 Magistrate Judge (“Report”), the Objections and Plaintiff’s Declaration. Further, the 19 Court has engaged in a de novo review of those portions of the Report to which 20 Plaintiff has objected. 21 In his objections, Plaintiff cites the First Amended Complaint (“FAC”) 22 allegations that he was given a 2" by 2" scrub pad, along with a cup of cell block 64, 23 to clean the urine and feces in a cell after he was moved to administrative 24 segregation. (Objections at 4-5; First Amended Complaint (“FAC”) at 8, 11.) Plaintiff 25 argues that the FAC alleges these supplies were “hardly enough to sufficiently 26 sanitize the Plaintiff’s living quarters.” (FAC at 8.) Plaintiff contends that it is 27 reasonable to infer the scrub pad did not have the absorbency of a sponge and would 28 1 Defendants’ motion to dismiss Claims Two and Three of the FAC should be denied. 2 IT IS ORDERED that Defendants’ motion to dismiss is GRANTED IN PART 3 and DENIED IN PART as follows: 4 (1) The official capacity claims are dismissed with prejudice; 5 (2) Defendants’ motion to dismiss Claims One, Two and Three in Defendants’ 6 individual capacity is denied; and 7 (3) Defendants are directed to respond to the FAC within 30 days after entry of 8 this order. 9 Along with his objections, Plaintiff filed a motion for appointment of counsel 10 (“Motion”). (Dkt. No. 50.) Plaintiff states that he is unable to afford counsel and the 11 imprisonment limits his ability to litigate his case. Plaintiff states that “the issues 12 involved in this case are complex and require[] significant research and 13 investigation,” and the “COVID-19 Order” limits his access to the prison law library to 14 conduct research. (Motion at 1-2.) Plaintiff requests counsel to assist him with 15 expert testimony at trial, cross examination of witnesses and presentation of 16 evidence. Plaintiff requests that the Court appoint “Christopher Arledge a member of 17 ‘One LLP’.com as counsel in this case who has been appointed as counsel in the 18 Plaintiff’s pending complaint no. 2:17-cv-00393-JVS (AGR[x]).” (Id. at 2.) 19 Generally, a person has no constitutional right to appointment of counsel for § 20 1983 claims. See Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998). A court has 21 discretion to request counsel for indigent civil litigants pursuant to 28 U.S.C. § 22 1915(e)(1) under “exceptional circumstances.” Agyeman v. Corr. Corp. of America, 23 390 F.3d 1101, 1103 (9th Cir. 2004). To determine whether exceptional 24 circumstances exist, a court must consider the litigant’s likelihood of success on the 25 merits as well as the ability of the litigant to articulate his claims pro se in light of the 26 complexity of the legal issues involved in the case. Id.; Weygandt v. Look, 718 F.2d 27 952, 954 (9th Cir. 1983). 28 Plaintiff’s request for counsel for purposes of trial is premature. Plaintiff shows 1 || no exceptional circumstances justifying appointment of counsel at this stage of the 2 || proceedings. The issues in his case are not complex. Plaintiff has demonstrated the 3 || ability to articulate his claim pro se. 4 IT IS ORDERED that Plaintiff's motion for appointment of counsel is DENIED 5 | WITHOUT PREJUDICE at this stage of the proceedings. Nothing in this order 6 || prevents Plaintiff from retaining counsel on his own. 8 9 7 / J (] 10 || DATED: July 13, 2020 , me hy _ JAMESN. SELNA 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28