Hill v. Alpine Sherriff Department ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PERCY EDWIN HILL, Case No.: 18cv2470-CAB-MDD 12 Plaintiff, ORDER DENYING WITHOUT 13 vs. PREJUDICE MOTION FOR APPOINTMENT OF COUNSEL [Doc. 14 No. 49] 15 ALPINE SHERIFF DEPARTMENT, et al., 16 Defendants. 17 18 19 20 PROCEDURAL BACKGROUND 21 On March 5, 2018, Plaintiff Percy Edwin Hill (Plaintiff) filed a complaint against 22 Defendants in state court regarding an alleged incident that occurred on November 23, 23 2017 at a property managed by Plaintiff. [Doc. No. 1-2.] Plaintiff claims, among other 24 things, that the Defendant officers unlawfully assaulted him. [Id.] When Plaintiff filed 25 the complaint, he was a non-prisoner proceeding pro se. The case was later removed to 26 this Court. Continuing in his pro se status, on January 30, 2019, Plaintiff filed a Second 27 Amended Complaint (“SAC”) [Doc. No. 8], which the Defendants answered on February 28 14, 2019 [Doc. No. 10]. Thereafter the parties participated in an Early Neutral 1 Evaluation Conference [Doc. No. 13] and, when the case did not settle, a Scheduling 2 Order was issued [Doc. No. 14]. 3 On September 9, 2019, Defendants filed a Motion for Rule 37 Sanctions against 4 Plaintiff for failing to serve his initial disclosures. [Doc. No. 22.] Following a hearing on 5 Defendants’ Motion before Magistrate Judge Dembin, the Court imposed several 6 evidentiary sanctions and ordered Plaintiff to pay the County of San Diego $1,518.00 as 7 monetary sanctions no later than November 25, 2019. [Doc. No. 32.] The Court specified 8 that any party could serve and file objections to the Order on or before November 8, 9 2019. Plaintiff has not filed an objection to the Court’s Order and has not made any 10 payments to the County of San Diego. 11 On January 24, 2020, Defendants filed a status report stating that Defendants had 12 become aware that Plaintiff has been incarcerated in the Mohave County Jail since at 13 least October 28, 2019. [Doc. No. 35.] However, Plaintiff had not informed the Court of 14 any change of address. Therefore, on January 31, 2020, this Court issued an order 15 vacating all pretrial dates, setting a status conference for April 10, 2020 and ordering 16 Plaintiff to appear in person. [Doc. No. 36.] On April 3, 2020, due to the COVID 19 17 Public Emergency, the status conference was converted to a telephonic conference, and 18 all parties were given instructions on how to connect to the telephonic hearing. [Doc. No. 19 37.] On April 10, 2020, Plaintiff failed to appear at the telephonic status hearing and the 20 case was dismissed. [Doc. No. 38.] 21 On June 16, 2020, Plaintiff filed a motion for appointment of counsel under the 22 assumption that his case was still pending. [Doc. No. 41.] In that motion, Plaintiff 23 indicated that he was at a different address. The docket was amended to reflect his 24 Plaintiff’s new address, the motion for counsel was denied without prejudice, and the 25 clerk sent Plaintiff a copy of the Court’s order of April 10, 2020. [Doc. No. 42.] 26 On July 10, 2020, Plaintiff filed a Motion to Not Dismiss My Case, which the 27 Court deemed a motion for relief from judgment or order pursuant to Fed.R.C.P. Rule 60. 28 [Doc. Nos. 43, 44.] On July 14, 2020, the motion for relief was granted and the case was 1 reopened. [Doc. No. 45.] 2 On July 27, 2020, Plaintiff filed the pending motion for appointment of counsel 3 indicating that he continues to be incarcerated in Arizona. [Doc. No. 49.] 4 DISCUSSION 5 Plaintiff asks the Court to appoint counsel for him because he is indigent, 6 incarcerated, the issues in the case are complex, and he has limited access to a law 7 library. [Doc. No. 49.] 8 However, there is no constitutional right to counsel in a civil case. Lassiter v. Dept. 9 of Social Servs, 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 10 2009). And while 28 U.S.C. § 1915(e)(1) grants the district court limited discretion to 11 “request” that an attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of 12 America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion is exercised only in 13 “exceptional circumstances.” Id.; see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 14 Cir. 1991). A finding of exceptional circumstances requires the Court “to consider 15 whether there is a ‘likelihood of success on the merits’ and whether ‘the prisoner is 16 unable to articulate his claims in light of the complexity of the legal issues involved.’” 17 Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560 F.3d 18 at 970). 19 The Court denies Plaintiff’s request without prejudice at this time because nothing 20 in either his SAC or his Motion to Appoint Counsel suggests he is incapable of 21 articulating the factual basis for his claims. Id. In addition, Plaintiff has articulated 22 coherent arguments when filing motions and responses to motions. See e.g. Doc. Nos. 23 15, 30, 41, 44.] 24 At the same time, Plaintiff’s SAC, by itself, does not yet demonstrate a 25 “likelihood” of success on the merits. Id. Therefore, the Court finds no “exceptional 26 circumstances” exist to justify the appointment of counsel at this time. See, e.g., Cano v. 27 Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of counsel where prisoner 28 was able to articulate his inadequate medical care claims in light of the complexity of the 1 |/issues involved, but found unlikely to succeed on the merits). 2 CONCLUSION 3 For the reasons set forth above, the Motion for Appointment of Counsel is DENIED 4 || WITHOUT PREJUDICE. 5 IT IS SO ORDERED. 6 Dated: July 28, 2020 € ZL 7 Hon. Cathy Ann Bencivengo 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28