(PC) Avalos v. Kirchen-Rolph ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VINCENT JOHN AVALOS, Case No.: 1:21-cv-00084-ADA-CDB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 13 v. (Doc. 23) 14 SARA L. KIRCHEN-ROLPH, et al., ORDER GRANTING 14-DAY EXTENSION 15 Defendants. OF TIME WITHIN WHICH TO OBJECT TO FINDINGS AND RECOMMENDATIONS 16 (Doc. 22) 17 Plaintiff Vincent Johnny Avalos is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. 19 I. INTRODUCTION 20 Plaintiff filed a motion for the appointment of counsel on September 20, 2023. (Doc. 23.) 21 He asserts the following as the bases for his request: (1) his inability to afford counsel; (2) his 22 imprisonment greatly impacts his ability to litigate, he has limited knowledge of the law, and the 23 issues are complex and will require significant research and investigation; (3) a trial would 24 involve conflicting testimony and counsel would be better able to present evidence and call and 25 cross-examine witnesses; (4) his repeated and unsuccessful efforts to obtain legal assistance; (5) 26 his limited access to the law library. Id. 27 1 II. DISCUSSION 2 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. 3 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 4 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 5 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 6 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 7 to section 1915(e)(1). Rand, 113 F.3d at 1525. 8 Given that the Court has no reasonable method of securing and compensating counsel, the 9 Court will seek volunteer counsel only in extraordinary cases. In determining whether 10 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 11 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 12 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 13 citations omitted). 14 A. Analysis 15 The Court must evaluate the likelihood of Plaintiff’s success on the merits of his claims. 16 Rand, 113 F.3d at 1525. Here, Plaintiff’s first amended complaint was screened as required by 28 17 U.S.C. § 1915A(a) (see Doc. 22) and the undersigned recommended it be dismissed as barred by 18 the statute of limitations and for failure to state a claim. See, e.g., Davood v. Jimmanz, No. 1:21- 19 cv-01394-SAB (PC), 2021 WL 6051735, at *2 (E.D. Cal. Dec. 21, 2021) (no exceptional 20 circumstances present where complaint dismissed for failure to state claim). 21 The Court must also evaluate Plaintiff’s ability to articulate his claims pro se in light of 22 the complexity of the legal issues involved. Rand, 113 F.3d at 1525. Here, the Court finds 23 Plaintiff able to articulate his claims in light of their complexity. More specifically, Plaintiff – 24 acting pro se – previously litigated virtually identical claims against different defendants in a 25 different forum as those raised in this action. See generally Avalos v. Sup. Ct. Cnty. of Riverside, 26 No. ED CV 19-0031-JAK (PJW), 2020 WL 3549199 (C.D. Cal. May 28, 2020) (recommending 27 dismissal of action based on defendants’ immunity), R&R adopted, 2020 WL 3546077 (June 30, 1 and first amend complaint) demonstrates that Plaintiff competently understands and can articulate 2 the constitutional theories supporting his claims. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 3 1987) (affirming district court’s denial of request for appointment of counsel where pleadings 4 demonstrated petitioner had “a good understanding of the issues and the ability to present 5 forcefully and coherently his contentions”). 6 Further, the claims are not complex. Bonin v. Vasquez, 999 F.2d 425, 428–29 (9th Cir. 7 1993) (while Plaintiff may have limited knowledge of the law, the Court does not find the issues 8 in this case “so complex that due process violations will occur absent the presence of counsel”); 9 Andre-Gollihar v. County of San Joaquin, No. 2:09-cv-03313 MCE KJN PS, 2010 WL 2925358, 10 at *2 (E.D. Cal. July 26, 2010) (“plaintiff’s claims of excessive force and wrongful death are not 11 complex”); see also Crawford v. Hughes, No. 13-CV-6638-FPG, 2017 WL 130273, at *3 12 (W.D.N.Y. Jan. 13, 2017) (“the issues in this case—namely, the alleged use of excessive force, 13 discrimination, and denial of due process at a disciplinary hearing—are not complex”); Williams 14 v. Whitehurst, No. 4:08CV21-SPM/AK, 2008 WL 1766570, at *1 (N.D. Fla. Apr. 11, 2008) 15 (“Although Plaintiff’s claims are serious, they are not complex nor will he be required to do legal 16 research since the court is familiar with the law on claims of excessive force and failure to 17 protect”). 18 Inability to Afford Counsel 19 Concerning Plaintiff’s inability to afford to hire counsel, that circumstance does not 20 qualify as an exceptional circumstance warranting the appointment of counsel. See Dijkstra v. 21 Campos, No. 1:21-cv-01223-HBK, 2022 WL 222518, at *1 (E.D. Cal. Jan. 25, 2022) (“Plaintiff’s 22 indigence does not qualify ‘as an exceptional circumstance in a prisoner civil rights case’”); 23 Gipbsin v. Kernan, No. 2:12-cv-0556 KJM DB P, 2021 WL 242570, at *2 (E.D. Cal. Jan. 25, 24 2021) (“Plaintiff’s inability to afford counsel has no bearing on either his likelihood of success on 25 the merits or his ability to articulate his claims pro se”); Callender v. Ramm, No. 2:16-cv-0694 26 JAM AC P, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018) (“The law is clear: neither 27 plaintiff’s indigence, nor his lack of education, nor his lack of legal expertise warrant the 1 *2 (E.D. Cal. June 11, 2010) (“Neither indigence nor lack of facility in English qualifies as an 2 exceptional circumstance in a prisoner civil rights case”). 3 Imprisonment 4 While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status and 5 his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. 6 See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The test is whether exceptional 7 circumstances exist; here, they do not. There is little doubt most pro se litigants “find it difficult 8 to articulate [their] claims,” and would be better served with the assistance of counsel. Id. For this 9 reason, in the absence of counsel, federal courts employ procedures which are highly protective 10 of a pro se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se 11 complaint to less stringent standard) (per curiam). In fact, where a plaintiff appears pro se in a 12 civil rights case, the court must construe the pleadings liberally and afford the plaintiff any 13 benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 14 1988). The rule of liberal construction is “particularly important in civil rights cases.” Ferdik v. 15 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, where a pro se litigant can “articulate his 16 claims” in light of the relative complexity of the matter, the “exceptional circumstances” which 17 might require the appointment of counsel do not exist. Wilborn, 789 F.2d at 1331; accord Palmer 18 v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). See also Robinson v. Cryer, No. 1:20-cv-00622- 19 HBK (PC), 2021 WL 9541411, at *1 (E.D. Cal. Jan. 11, 2021) (“Although Plaintiff is proceeding 20 pro se and is incarcerated, he faces the same obstacles all pro se prisoners face”). 21 Conflicting Testimony & Examination of Witnesses at Trial 22 Plaintiff’s further assertions that an attorney may be better able to perform research, 23 investigate, and represent Plaintiff during discovery and at trial does not amount to an exceptional 24 circumstance. Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) 25 when district court denied appointment of counsel despite fact that pro se prisoner “may well 26 have fared better-particularly in the realm of discovery and the securing of expert testimony”); 27 Wilborn, 789 F.2d at 1331 (same); Courtney v. Kandel, No. 2:18-CV-2052-KJM-DMC-P, 2020 1 trial “are ordinary for prisoners pursuing civil rights claim” and cannot form the basis for 2 appointment of counsel); Ricks v. Austria, No. 1:15-cv-01147-BAM (PC), 2016 WL 1734326, at 3 *2 (E.D. Cal. May 2, 2016) (while a pro se litigant may be better served with the assistance of 4 counsel were the case to proceed to trial, the court need not appoint counsel if plaintiff can 5 articulate his claims and exceptional circumstances do not exist); Thornton v. Schwarzenegger, 6 No. 10CV01583 BTM RBB, 2011 WL 90320, at *7 (S.D. Cal. Jan. 11, 2011) (explaining that 7 “[f]actual disputes and anticipated cross-examination of witnesses do not indicate the presence of 8 complex legal issues warranting a finding of exceptional circumstances”). 9 Unsuccessful Efforts to Obtain Counsel 10 While the Court appreciates Plaintiff's efforts to secure counsel, his inability to find 11 counsel is not “a proper factor for the Court to consider in determining whether to request 12 counsel. Howard v. Hedgpeth, No. 08cv0859 RTB (PCL), 2010 WL 1641087, at *2 (E.D. Cal. 13 Apr. 20, 2010) (an inability to find counsel is not a proper factor for the Court to consider). 14 * * * * * 15 Limited Access to Law Library 16 Plaintiff also complains that he has “limited access to the law library” and has “been 17 denied any meaningful access to the Court.” (Doc. 23 at 1.) In support thereof, Plaintiff attaches 18 (1) a form letter from a senior librarian to library patrons at the facility where Plaintiff is housed, 19 dated June 12, 2023 (id. at 7) and (2) two legal material request forms that appear to have been 20 authored by Plaintiff and reviewed by the same senior librarian (id. at 8-9.) These supporting 21 materials do not demonstrate that Plaintiff’s access to either the prison library or to this Court is 22 being restricted. The form letter merely advises library patrons that they may request only three 23 law library items at one time, and the legal material request forms merely demonstrate that 24 Plaintiff is able to successfully request legal forms and paper. 25 While Plaintiff has failed to demonstrate that his regulated access to the prison’s law 26 library warrants appointment of counsel, given his assertions concerning restricted access and the 27 pendency of the recently issued findings and recommendations to dismiss this case, the Court 1 | objections thereto. 2 I. CONCLUSION AND ORDER 3 In sum, as explained above, the Court finds that exceptional circumstances do not exist 4 | warranting the appointment of counsel in this action. Accordingly, IT IS HEREBY ORDERED 5 | that Plaintiff's motion for the appointment of counsel (Doc. 23) is DENIED. 6 IT IS FURTHER ORDERED that Plaintiff shall have an extension of 14-days from the 7 | date of this Order to file objections to the pending findings and recommendations. (Doc. 22.) The 8 | document should be captioned, “Objections to Magistrate Judge’s Findings and 9 | Recommendations.” Plaintiff is reminded that failure to file objections within the specified time 10 | may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 11 } 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)) 12 | IT IS SO ORDERED. 8 Dated: _ September 25, 2023 | Vv Vv RR 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28