(PC) Shepard v. Borum ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAMONT SHEPARD, Case No. 1:18-cv-00277-ADA-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 13 v. (Doc. No. 118) 14 M. BORUM, J. ACEBEDO, 15 Defendants. 16 17 Pending before the Court is Plaintiff’s Motion for Appointment of Counsel (“Motion “) 18 and Objection to Defendant’s Notice of Appearance of Additional Counsel (“Objection”) 19 concurrently filed on December 12, 2022. (Doc. Nos. 118, 119). In his Motion, Plaintiff requests 20 the Court to appoint him counsel because: he cannot afford counsel, his current classification does 21 not provide him access to the law library, he has limited knowledge of the law, and he believes 22 counsel is better positioned to present evidence and cross examine witnesses. (See generally Doc. 23 No. 118). In his Objection, Plaintiff wishes to state for “appeal purposes” that he opposes the 24 entry of the appearance of a second attorney on behalf of defendants as “unfair.” (See generally 25 Doc. No. 119). In passing, Plaintiff requests the “removal” of the judge overseeing the case. 26 (Id.). Liberally construed, Plaintiff seeks recusal of the assigned judge(s). 27 Procedurally, this civil case is set for a jury trial to commence on March 14, 2023, before 28 U.S. District Judge Ana de Alba. (Doc. No. 111). Because this is a civil case, the United States 1 Constitution does not require appointment of counsel. See Lewis v. Casey, 518 U.S. 343, 354 2 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not create a right to appointment of 3 counsel in civil cases). While a court has discretionary authority to appoint counsel for an 4 indigent person to commence, prosecute, or defend a civil action under 28 U.S.C. § 1915, 5 Plaintiff paid the filing fee for this action on March 28, 2018 and is not proceeding in forma 6 pauperis. See 28 U.S.C. § 1915(e)(1)(stating the court has authority to appoint counsel for people 7 unable to afford counsel). Consequently, at the outset, Plaintiff has not demonstrated he qualifies 8 for court appointed counsel. 9 Even if Plaintiff is determined to be indigent, motions to appoint counsel in civil cases are 10 granted only in “exceptional circumstances.” United States v. McQuade, 519 F.2d 1180, 1181 11 (9th Cir. 1978). And the inability to afford counsel does not qualify “as an exceptional 12 circumstance in a prisoner civil rights case.” Montano v. Solomon, 2010 WL 2403389, at *2 13 (E.D. Cal. June 11, 2010); Callender v. Ramm, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 14 2018). 15 Challenges preparing for trial “are ordinary for prisoners pursuing civil rights claim” and 16 cannot form the basis for appointment of counsel. Courtney v. Kandel, 2020 WL 1432991, at *1 17 (E.D. Cal. Mar. 24, 2020). And while “[p]risoners have a right to meaningful access to the 18 courts, but there is no absolute right to use a prison law library.” Springfield v. Khalit, 2018 WL 19 5980155, at *3 (E.D. Cal. Nov. 14, 2018) (citing Lewis v. Casey, 518 U.S. 343, 346 (1996)). 20 Plaintiff does not allege that officials have not provided him with legal materials he requests 21 despite being physically prohibited from accessing the law library due to his classification status. 22 And while Plaintiff may have limited knowledge of the law, the Court does not find the issues in 23 this case “so complex that due process violations will occur absent the presence of counsel.” 24 Bonin v. Vasquez, 999 F.2d 425, 428–29 (9th Cir. 1993). Additionally, Plaintiff has demonstrated 25 an ability to litigate this case pro se thus far. He has plausibly stated a claim to survive an initial 26 screening, capably filed motions, and survived summary judgment. 27 Furthermore, although the assistance of counsel during trial may be helpful, the “relevant 28 consideration is not one of convenience” but rather exceptionalness. Howard v. Hedgpeth, 2010 1 WL 1641087, at *2 (E.D. Cal. Apr. 20, 2010). General claims that an attorney will be better than 2 Plaintiff at conduction cross examination and presenting evidence are not exceptional 3 circumstances. Thus, even assuming Plaintiff can demonstrate that he cannot afford counsel, 4 Plaintiff has not shown exceptional circumstances to warrant appointment of counsel. 5 The Court notes Plaintiff’s objection to the appearance of additional counsel for the 6 record. Although noted, the Court is not aware of any legal authority prohibiting a party from 7 securing additional counsel. Indeed, additional counsel is the norm when a case proceeds to trial 8 against multiple defendants. 9 Finally, it is uncertain whether Plaintiff’s passing reference that the judge be removed 10 refers to the undersigned or District Judge de Alba. Regardless, Plaintiff provides not factual 11 basis for recusal of either judge. Whether a federal judge is required to recuse oneself is 12 governed by 28 U.S.C. § 455. Title 28 U.S.C. § 455 provides that “any justice, judge or 13 magistrate judge shall disqualify [herself] in any proceeding in which [her] impartiality might 14 reasonably be questioned” or “[w]here [she] has a personal bias or prejudice concerning a party.” 15 28 U.S.C. §§ 455(a). “The standard for judging the appearance of partiality requiring recusal 16 under 28 U.S.C. § 455(a) is an objective one and involves ascertaining ‘whether a reasonable 17 person with knowledge of all the facts would conclude that the judge’s impartiality might 18 reasonably be questioned.’” United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008); Preston 19 v. United States, 923 F.2d 731, 734 (9th Cir. 1991) (citations omitted). The “reasonable person” 20 is not someone who is “hypersensitive or unduly suspicious,” but rather is a “well-informed, 21 thoughtful observer.” Holland, at 913. “The standard “‘must not be so broadly construed that it 22 becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated 23 suggestion of personal bias or prejudice.’” Holland, 519 F.3d at 913. 24 The court’s analysis is “fact-driven” requiring “an independent examination of the unique 25 facts and circumstances of the particular claim at issue.” Id. at 914 (citation omitted). Thus, 26 “except in the “rarest of circumstances,” recusal under § 455(a) is limited to “extra judicial 27 source” factors requiring the reason for recusal to be “something other than rulings, opinions 28 formed or statements made by the judge during the course of trial. Id. (citing Liteky v. United 1 | States, 510 U.S. 540, 554-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)). Here, Plaintiff 2 | complains only that the judge has “sided with defense” but otherwise the Objection is devoid of 3 | any factual specificity. This sole complaint is woefully deficient to warrant judicial recusal. 4 Accordingly, it is ORDERED: 5 Plaintiff's Motion for Appointment of Counsel (Doc. No. 118) is DENIED. 6 Dated: _ January 4, 2023 Coo. Zh. Bareh Hack 8 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28