Gallegos v. Seeley ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRO GALLEGOS, Case No.: 18cv1322-JAH (MSB) 12 Plaintiff, ORDER: 13 v. 1. DENYING PLAINTIFF’S THIRD 14 MOTION FOR APPOINTMENT OF 15 COUNSEL (Doc. No. 42); 16 K. SEELEY, M.D., 2. GRANTING PLAINTIFF’S 17 Defendant. REQUEST TO CONTINUE FINAL PRETRIAL CONFERENCE (Doc No. 18 48); AND 19 3. SCHEDULING TELEPHONIC 20 STATUS HEARING 21 22 Pending before the Court is Plaintiff Alejandro Gallego’s (“Plaintiff) third motion 23 for appointment of counsel and motion to continue final pretrial conference. See Doc. 24 Nos. 42, 48. In support of the motion for appointment of counsel, Plaintiff argues the 25 likelihood of success on the merits and the complexity of the issues involved in the case 26 warrant the need for the court to appoint counsel. See generally Id. at 42. Plaintiff requests 27 a continuance as to the final pretrial conference and related filing dates because of his 28 ongoing recovery from COVID-19 and the challenges presented by the public health 1 emergency, and to allow him additional time to secure private counsel. See generally Id. 2 at 48. 3 DISCUSSION 4 As discussed in the Court’s previous denials of Plaintiff’s motions for appointment 5 of counsel, the Constitution provides no right to appointment of counsel in a civil case 6 unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. 7 Dep’t Soc. Servs., 452 U.S. 18, 25 (1981). The Court may request an attorney voluntarily 8 to represent a person proceeding in forma pauperis who is unable to afford counsel. 28 9 U.S.C. § 1915(d). “Counsel should only be appointed in exceptional circumstances, based 10 on such factors as the likelihood of success on the merits and the ability of the plaintiff to 11 articulate his claims in light of their complexity.” Wood v. Housewright, 900 F.2d 1332, 12 1335 (9th Cir. 1990). However, appointment of counsel by the Court in such circumstances 13 is discretionary, not mandatory. United States v. $292,888.04 in U.S. Currency, 54 F.3d 14 564, 569 (9th Cir. 1995). 15 Here, Plaintiff has not demonstrated “exceptional circumstances” warranting an 16 appointment of counsel at this stage of the proceeding, nor has he shown the inability to 17 prepare and present his case without the assistance of counsel. While Plaintiff has 18 adequately articulated his claims, it is difficult to determine at this time whether it is likely 19 that Plaintiff will succeed on the merits. Although Plaintiff alleges the complexity of the 20 issues involved in the case necessitate the need for voluntary counsel, a review of the record 21 demonstrates Plaintiff’s ability to diligently represent himself in this action. Moreover, 22 circumstances common to most prisoners, such as lack of legal education and limited law 23 library access, do not establish exceptional circumstances that would warrant a request for 24 an appointment of counsel. See, e.g., Wood, 900 F.2d at 1335-36. In light of Plaintiff’s 25 current effort to secure private counsel and Plaintiff’s ability to diligently represent himself, 26 the Court finds that Plaintiff has not established the “exceptional circumstances” required 27 for the appointment of counsel, pursuant to 28 U.S.C. § 1915(e)(1). 28 /// 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s third motion for appointment of counsel is DENIED without prejudice 4 (Doc. No. 42). 5 2. Plaintiff’s request to continue final pretrial conference and related fillings is 6 GRANTED (Doc. No. 48). 7 a. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 8 Civ. P. 26(a)(3) by November 6, 2020. Failure to comply with these 9 disclosure requirements could result in evidence preclusion or other 10 sanctions under Fed. R. Civ. P. 37. 11 b. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) 12 by November 13, 2020. At this meeting, counsel shall discuss and attempt 13 to enter into stipulations and agreements resulting in simplification of the 14 triable issues. Counsel shall exchange copies and/or display all exhibits 15 other than those to be used for impeachment. The exhibits shall be prepared 16 in accordance with Local Rule 16.1(f)(4)(c). Counsel shall note any 17 objections they have to any other parties’ Pretrial Disclosures under Fed. 18 R. Civ. P. 26(a)(3). Counsel shall cooperate in the preparation of the 19 proposed pretrial conference order. 20 c. Counsel for plaintiff will be responsible for preparing the pretrial order and 21 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By 22 November 20, 2020, plaintiff’s counsel must provide opposing counsel 23 with the proposed pretrial order for review and approval. Opposing counsel 24 must communicate promptly with plaintiff’s attorney concerning any 25 objections to form or content of the pretrial order, and both parties shall 26 attempt promptly to resolve their differences, if any, concerning the order. 27 d. The Proposed Final Pretrial Conference Order, including objections to any 28 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be 1 prepared, served and lodged with the Court by December 2, 2020, and 2 shall be in the form prescribed in and comply with Local Rule □□□□□□□□□□□ 3 e. The final Pretrial Conference is scheduled before the Court on December 4 9, 2020 at 10:30 a.m. 5 f. The parties must review the chambers’ rules for the assigned district judge 6 and magistrate judge. 7 g. A post trial settlement conference before a magistrate judge may be held 8 within 30 days of verdict in the case. 9 h. The dates and times set forth herein will not be modified except for good 10 cause shown. 11 i. Plaintiff's counsel shall serve a copy of this order on all parties that enter 12 this case hereafter. 13 3. The parties shall appear telephonically before this Court for a status hearing on 14 August 26, 2020 at 10:30 a.m. The parties shall contact chambers at 619-557- 15 5716. 16 IT IS SO ORDERED. 17 18 19 || DATED: July 29, 2020 20 21 Hn. John A. Houston 9 Jnited States District Judge 23 24 25 26 27 28