(PC) Garces v. Gamboa ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LUIS MANUEL GARCES, Case No. 1:21-cv-00392-JLT-EPG (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 12 FOR APPOINTMENT OF PRO BONO v. COUNSEL WITHOUT PREJUDICE 13 M. GAMBOA, et al., (ECF No. 258) 14 15 Defendants. 16 17 Plaintiff Luis Manuel Garces is a state prisoner proceeding pro se in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. 19 On May 10, 2023, Plaintiff filed a motion for appointment of pro bono counsel.1 (ECF 20 No. 258). Plaintiff states that he is unable to afford counsel, that his confinement in segregation 21 22 1 The Court notes that, on the same day Plaintiff filed the instant motion, Plaintiff also filed an interlocutory appeal regarding the Court’s prior discovery orders and denial of Plaintiff’s requests for 23 the appointment of counsel. (ECF No. 256). On May 17, 2024, Plaintiff filed a second interlocutory appeal of the Court’s order granting Defendant’s motion to strike Plaintiff’s motion for summary 24 judgment on the grounds that Plaintiff failed to establish good cause for failing to abide by the scheduling order. (ECF No. 262). Plaintiff’s interlocutory appeals of this Court’s discovery orders and 25 orders denying Plaintiff’s requests for the appointment of counsel do not divest the Court of jurisdiction to conduct further proceedings. See Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007) (“When 26 a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order, it does not 27 transfer jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act until the mandate has issued on the appeal does not apply.”); Admiral Ins. Co. v. United States Dist. Ct., 881 28 F.2d 1486, 1490 (9th Cir. 1989) (internal citations omitted) (“Discovery orders are not final appealable orders under 28 U.S.C. § 1291[.]”); Wilborn v. Escalderon, 789 F.2d 1328, 1330 (9th Cir. 1986) (citing 1 greatly limits his ability to access the law library, and that Plaintiff is illiterate and has a limited 2 knowledge of the law. (Id. at 1). Plaintiff also states that he has attempted to seek counsel on 3 his own but has been unsuccessful. (Id.) 4 I. DISCUSSION 5 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 6 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 7 952 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 8 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of 9 Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may 10 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 11 1525. 12 Without a reasonable method of securing and compensating counsel, the Court will seek 13 volunteer counsel only in the most serious and exceptional cases. In determining whether 14 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 15 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 16 complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 17 “Neither of these considerations is dispositive and instead must be viewed together.” Wilborn v. 18 Escalderon, 790 F.2d 1328, 1331 (9th Cir. 1986). The burden of demonstrating exceptional 19 circumstances is on the plaintiff. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 1009). 20 Here, the Court does not find the required exceptional circumstances. Plaintiff’s claims 21 involve the use of force by Defendants Hernandez, Hubbard, Huerta, Cathey, Wolf, and 22 Allison; deliberate indifference to a serious medical need by Defendants Hernandez, Hubbard, 23 Gill, Ibarra, Camacho, Aragon, Ramadan, and Boyd; and procedural due process violations by 24 Defendants Gamboa, Babb, and Sanders.2 Plaintiff argues that he has demonstrated the 25 26 Kuster v. Block, 773 F.2d 1048 (9th Cir. 1985)) (“Because the denial of counsel in a civil rights action brought under 42 U.S.C. § 1983 does not resolve an important issue completely separate from the 27 merits. . .it is not immediately appealable.”). 28 2 Defendants Aragon, Boyd, Camacho, Gill, Ibarra, and Ramadan (“Medical Staff Defendants”) filed a motion for summary judgment on the ground that Plaintiff failed to properly exhaust his available 1 likelihood of success on his claims because his “allegations, if proved, clearly would establish a 2 constitutional violation.” (ECF No. 258 at 7). However, Plaintiff has not provided any evidence 3 that suggests he is likely to succeed on the merits of his claims in this case.3 Further, Plaintiff’s 4 factual allegations and claims are not atypical from most pro se prisoner civil rights cases, and 5 thus, do not present complex legal issues. 6 Plaintiff’s arguments that an attorney would be in a better position to investigate and 7 research Plaintiff’s claims does not amount to exceptional circumstances. See Rand, 113 F.3d at 8 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied 9 appointment of counsel despite fact that pro se prisoner “may well have fared better- 10 particularly in the realm of discovery and the securing of expert testimony”); Wilborn, 789 F.2d 11 at 1331 (“Most actions require development of further facts during litigation and a pro se 12 litigant will seldom be in a position to investigate easily the facts necessary to support the 13 case”). While the Court appreciates Plaintiff's efforts to secure counsel, the inability to find 14 counsel is not “a proper factor for the Court to consider in determining whether to request 15 counsel.” Howard v. Hedgpeth, No. 1:08-cv-00859-RTB-PCL, 2010 WL 1641087, at *2 (E.D. 16 Cal. Apr. 20, 2010). 17 Additionally, Plaintiff’s argument that he is otherwise disadvantaged without the help of 18 counsel due to the overall conditions of his confinement and his personal capabilities also fails 19 to demonstrate exceptional circumstances.4 See Jones v. Kuppinger, 13CV451-WBS (AC), 20 administrative remedies as to his Eighth Amendment deliberate medical indifference claims against 21 them. (ECF No. 191). The Court held an evidentiary hearing on the issue of whether Plaintiff filed a 22 timely grievance that properly exhausts his claims against the Medical Staff Defendants via Zoom videoconference on May 28, 2024. (ECF No. 267). The Court will issue its evidentiary findings and 23 recommendations in due course. Defendants Allison, Gamboa, and Babb have also filed a motion for summary judgment on the merits of Plaintiff’s excessive force claim against Defendant Allison and 24 Plaintiff’s due process claims against Defendants Gamboa and Babb based on the fabrication of evidence. (ECF No. 214). Defendants Allison, Gamboa, and Babb’s motion for summary judgment 25 remains pending before the Court. 26 3 A review of the evidence submitted by Plaintiff in opposition to Defendants Allison, Gamboa, and Babb’s motion for summary judgment does not clearly establish the likelihood of Plaintiff’s success 27 at trial on those claims, should those claims proceed past summary judgment. 28 4 The Court notes that Plaintiff’s first interlocutory appeal generally asserts that appointment of counsel is warranted because Plaintiff is mentally handicapped and has been placed in a higher level of 1 2015 WL 5522290, at *3-4 (E.D. Cal. Sept. 17, 2015) (“Circumstances common to most 2 prisoners, such as a deficient general education, lack of knowledge of the law, mental illness 3 and disability, do not in themselves establish exceptional circumstances warranting 4 appointment of voluntary civil counsel.”); Cardwell v. Kettelhake, 2010 WL 3636267 at *1 5 (E.D. Cal. Sept. 14, 2010) (plaintiff's failure to complete high school, his alleged difficulty 6 responding to pleadings and understanding procedural rules, and his limited access to the law 7 library do not establish “exceptional circumstances” warranting appointment of counsel as they 8 are “experience[s] common to many prisoners”). 9 Further, Plaintiff's arguments based on his demand for a jury trial and conflicting 10 testimony also fail to demonstrate exceptional circumstances. See Courson v. Cochran, No. 08- 11 CV-871 JAH (WMc), 2009 WL 10725719, at *2 (S.D. Cal. Nov. 2, 2009) (“[V]irtually every 12 trial involves credibility issues.”); Ramirez v. Gutierrez, No: 20-cv-01109-MMA(BLM), 2022 13 WL 959647, at *3 (S.D. Cal. Mar. 30, 2022) (finding such concerns do not warrant 14 appointment of counsel before the claims have survived summary judgment) (citing Leon v. 15 Celaya, No. 20-cv-0899-AJB-BGS, 2021 WL 533514, at *4 (S.D. Cal. Feb. 12, 2021)). 16 Finally, where a pro se civil rights plaintiff shows he has a good grasp of basic litigation 17 procedure and has articulated his claims adequately, he does not demonstrate the exceptional 18 circumstances required for the appointment of counsel. See Palmer, 560 F.3d 965, 970 (9th Cir. 19 2009) (no abuse of discretion in denying appointment of counsel where plaintiff “was well- 20 21 mental health care. (See ECF No. 256 at 3). Plaintiff has also made similar arguments in prior motions 22 for the appointment of counsel. Although mental disability may be grounds for appointment of counsel in some cases, there must be substantial evidence of a plaintiff's incompetence. Fletcher v. Quinn, No. 23 3:15-cv-2156-GPC-NLS, 2018 WL 840174, at *2 (S.D. Cal. Feb. 13, 2018) (pro se prisoner’s status as a 24 patient in CDCR’s Enhanced Outpatient Program insufficient to warrant appointment of counsel). “The court must be able to find a nexus between the mental disorder and the plaintiff's ability to articulate his 25 claims.” Id.; see also McElroy v. Cox, No. 08-1221-JM (AJB), 2009 WL 4895360, at *2 (E.D. Cal. Dec. 11, 2009). Plaintiff’s instant motion does not establish that his mental disabilities are incapacitating, that 26 he is incompetent, or that his mental disability or mental impairments significantly impede his ability to articulate his claims or litigate his case. West v. Dizon, No. 12CV1293-DAD P, 2014 WL 114659, at *4 27 (E.D. Cal. Jan. 9, 2014) (denying appointment of counsel when mental disability was only alleged and plaintiff submitted no evidence as to the “nature or effects” of the disability). 28 1 || organized, made clear points, and presented evidence effectively”). Based on a review of the 2 || record to date, the Court is unable to find that Plaintiff is unable to adequately articulate his 3 || claims. Plaintiff has diligently litigated his case for more than three years now. Plaintiff has 4 || participated in an evidentiary hearing. He has filed numerous motions, including discovery 5 |} motions and injunctions. Further, Plaintiff has opposed dispositive motions filed by 6 || Defendants. 7 Accordingly, no exceptional circumstances exist warranting the appointment of counsel. 8 IL. CONCLUSION & ORDER 9 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion for appointment of 10 || pro bono counsel (ECF No. 258) is DENIED without prejudice. 11 IT IS SO ORDERED. 13 || Dated: _ May 30, 2024 [sf ey — 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28