Hunter v. Sokoloff ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN DOUGLAS HUNTER, Case No. 14-cv-05031-JST 8 Plaintiff, ORDER DENYING FURTHER 9 v. REQUEST FOR APPOINTMENT OF PRO BONO COUNSEL 10 MIKE SOKOLOFF, et al., Re: ECF No. 130 Defendants. 11 12 13 On May 1, 2019, the Court appointed attorneys from Durie Tangri LLP as pro bono 14 counsel for Plaintiff John Douglas Hunter. ECF No. 108. Several months later, Durie Tangri filed 15 a motion to withdraw as counsel, ECF No. 127, and Hunter filed a “motion requesting the denial 16 of the withdrawal of the law firm Durie Tangri as pro-bono appointments unless the Court 17 substitutes counsel for Plaintiff,” ECF No. 130. Both motions were referred to Magistrate Judge 18 Laurel Beeler for resolution. ECF Nos. 128, 131. 19 Judge Beeler granted Durie Tangri’s motion to withdraw and denied Hunter’s motion as to 20 Durie Tangri’s withdrawal. ECF No. 144. She construed the remainder of Hunter’s motion “as a 21 motion for the court to appoint him new pro-bono counsel”; set deadlines for the remaining 22 Defendant, Mike Sokoloff, to respond and for Hunter to file an optional reply; and “remind[ed] the 23 parties that the motion for new counsel will be decided by” this Court.1 ECF No. 147 at 1-2. 24 Defendant filed a timely opposition to Hunter’s request for new counsel. ECF No. 150. The 25 Court granted Hunter’s request to extend his reply deadline to December 18, 2019. ECF No. 157. 26 27 1 Sokoloff died on July 19, 2019. ECF No. 146 at 1. Defense counsel identified Sokoloff’s 1 Hunter’s reply was mailed on December 19, 2019, and filed on December 23, 2019, but it purports 2 to have been signed on December 17, 2019. ECF No. 158 at 7; ECF No. 158-1. The Court will 3 consider Hunter’s reply as if it were timely filed. 4 “Generally, a person has no right to counsel in civil actions. However, a court may under 5 ‘exceptional circumstances’ appoint counsel for indigent civil litigants pursuant to 28 U.S.C. 6 § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citations omitted) (affirming 7 district court’s decision to deny appointment of counsel, including at trial, to pro se prisoner 8 bringing claims under 42 U.S.C. § 1983). This requires consideration of both the likelihood of 9 success on the merits and the litigant’s ability “‘to articulate his claims pro se in light of the 10 complexity of the legal issues involved.’ Neither of these considerations is dispositive and instead 11 must be viewed together.” Id. (citations omitted). 12 On the first factor, Hunter has not made a showing that he is likely to succeed on the 13 merits. Although Sokoloff has opted not to file a motion for summary judgment, that indicates 14 only that he does not believe that “there is no genuine dispute as to any material fact and [he] is 15 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This does not mean that Hunter is 16 ultimately likely to prevail on his claim against Sokoloff. Evidence regarding that claim is not 17 before the Court, and the Court can make no determination on the likelihood of Hunter’s success 18 at trial. 19 On the second factor, the legal issues in this case do not appear to be complex. Only one 20 claim remains, and it is relatively straightforward: Hunter alleges that Sokoloff gave him a bag of 21 medication, some of which Hunter did not recognize. ECF No. 95 ¶ 11-12 (third amended 22 complaint). Hunter wanted to take Dilantin, the medication he recognized, but Sokoloff told him 23 he had to take all of the medication or none of it. Id. ¶¶ 12-13. When Hunter tried to take the 24 Dilantin, Sokoloff “lunged at Plaintiff and began choking Plaintiff to prevent him from 25 swallowing the pills.” Id. ¶ 14. As a result “of the excessive physical force used by Defendant 26 Sokoloff against Plaintiff, Plaintiff sustained injuries requiring medical treatment, including but 27 not limited to permanent and debilitating injuries to his neck and back, as well as pain and 1 relief: an Eighth Amendment excessive force claim under 42 U.S.C. § 1983. Id. ¶¶ 24-28. The 2 alleged facts are not complex, nor does Hunter raise complex legal theories. 3 Moreover, the need for discovery “does not necessarily qualify the issues involved as 4 ‘complex’” because “[m]ost actions require development of further facts during litigation and a 5 pro se litigant will seldom be in a position to investigate easily the facts necessary to support the 6 case.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (footnote omitted). But 7 where, as here, all discovery has been completed, there is even less justification for appointment of 8 counsel. The Court previously appointed counsel on a limited basis to assist Hunter with his own 9 deposition. ECF Nos. 42, 46. Subsequently appointed counsel assisted Hunter with conducting 10 his own discovery, including obtaining responses to written discovery, taking multiple 11 depositions, and cross-examining Sokoloff at a deposition taken by his own counsel to preserve 12 his testimony. ECF No. 118 at 5-6; ECF No. 137 ¶ 3. The discovery cut-off has now passed, see 13 ECF No. 117, and there will be no development of further facts in this case. 14 Hunter is also able to articulate his remaining claim without representation by counsel. In 15 fact, the reason for Durie Tangri’s withdrawal is that Hunter wanted to drive his own litigation 16 strategy. E.g., ECF No. 144 at 5 (“Mr. Hunter insists that Durie Tangri present motions in 17 litigation that Durie Tangri does not believe it has a good-faith basis for making and believes are 18 not warranted or supportable under existing law.”). Additionally, Hunter’s reply brief 19 demonstrates that he is capable of reviewing deposition testimony, relying on case law, and 20 making arguments based on the Federal Rules of Civil Procedure. See ECF No. 158. Further, as 21 Defendant correctly observes, Hunter is an experienced pro se litigant who has represented himself 22 at two criminal trials and in numerous state cases, including appeals, and continues to represent 23 himself in four other federal cases, including one appeal and one case before this Court. ECF No. 24 150 at 4-5 & nn.2-5 (citing cases). 25 For all of the above reasons, the Court does not find exceptional circumstances to appoint 26 counsel. Hunter’s further request for appointment of pro bono counsel is denied. 27 Unless and until another attorney enters an appearance on Hunter’s behalf, Hunter shall 1 continue to accept service of all papers from the parties or the court and to promptly forward them 2 || to Mr. Hunter.” ECF No. 144 at 6-7. Following entry of this order, all papers must be served by 3 mail on Hunter directly. 4 Finally, Hunter is reminded that he must make a motion to substitute Daniel Harris as the 5 successor to Sokoloff, who is now deceased, by February 3, 2020. If he does not do so, he risks 6 || dismissal of this action. See Fed. R. Civ. P. 25(a)(1) (“If the motion [for substitution] is not made 7 within 90 days after service of a statement noting the death, the action by or against the decedent g || must be dismissed.”); ECF No. 146 (suggestion of death, noting Harris as Sokoloff’s successor, 9 dated November 5, 2019). If Hunter files such a motion, Defendant’s counsel shall serve the 10 motion on Harris and file a proof of service with this Court. IT IS SO ORDERED. ® Dated: January 7, 2020 JON S. TIGAR' nited States District Judge 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28