Tilei v. California Department of Corrections and Rehabilitation ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PUNAOFO TSQUITO TILEI, CDCR #H- Case No.: 3:19-cv-01708-WQH-KSC 96960, 12 ORDER DENYING MOTION FOR Plaintiff, 13 NEW DETERMINATION v. APPOINTING COUNSEL; ORDER 14 ON REQUEST FOR JUDICIAL CALIFORNIA DEP’T OF 15 NOTICE [Doc. Nos. 50, 54] CORRECTION AND 16 REHABILITATION; DR. DAVID CLAYTON; DR. PEYMAN SHAKIBA; 17 DR. SAHA; JASHUA N. DOROS; DOES 18 1-10, 19 Defendant. 20 21 Plaintiff Punaofo Tsquito Tilei (“plaintiff”) is proceeding pro se and in forma 22 pauperis in this civil rights action pursuant to Title 42, United State Code, Section 1983, 23 alleging defendants violated his rights under the United States Constitution. See Doc. 24 No. 1. Before the Court are plaintiff’s Motion for a New Determination Appointing 25 Counsel Due to “Exceptional Circumstances” (the “Motion”) and a Request for Judicial 26 Notice of Court Records in Support of Plaintiff’s Motion for a New Determination 27 Appointing Counsel (the “RJN”). Doc. Nos. 50, 54. For the reasons that follow, 28 plaintiff’s Motion is DENIED WITHOUT PREJUDICE. 1 I. BACKGROUND 2 On September 7, 2019, plaintiff filed this action, asserting claims for violation of 3 his Eighth Amendment rights (specifically, deliberate indifference to plaintiff’s serious 4 medical needs), violation of California Government Code §845.6, and intentional 5 infliction of severe emotional distress. Doc. No. 1 at 15-18. Also on September 7, 2019, 6 plaintiff requested leave to proceed in forma pauperis. Doc. No. 2. On September 24, 7 2019, plaintiff filed a second motion for leave to proceed in forma pauperis. Doc. No. 7. 8 On September 23, 2019, plaintiff filed a motion for appointment of counsel. Doc. 9 No. 5. Plaintiff reported that he suffered from a “multiplicity of serious health 10 problems” that caused him chronic pain and often left him bedridden. Id. at 3-4. Plaintiff 11 stated that as a result, he was unable to “draft a lengthy document” or to pursue discovery 12 in the case, including “the use of one or more expert witnesses.” Id. at 4. Plaintiff also 13 asserted that his case is complex, and that he would be better able to present it with the 14 assistance of counsel. Id. Plaintiff’s motion was accompanied by a request that the 15 District Court take judicial notice of orders from three other federal court cases in 2011 16 and 2016 in which plaintiff was appointed counsel. See id. at 29-39. 17 On October 17, 2019, the District Court issued an order granting plaintiff’s 18 motions to proceed in forma pauperis but denying his motion for the appointment of 19 counsel. Doc. No. 10. In doing so, the District Court explicitly found that there were “no 20 ‘exceptional circumstances’” warranting the appointment of counsel at that time. Doc. 21 No. 10 at 6. The District Court denied the motion without prejudice, leaving open the 22 possibility that plaintiff might be appointed counsel if his circumstances changed. Id. 23 On November 7, 2019, plaintiff moved for reconsideration of the District Court’s 24 order declining to appoint counsel to assist him. Doc. No. 13. Plaintiff again cited his 25 “numerous serious medical conditions” which left him “incapacitated” and unable to 26 “adequately advance and prosecute his complaint on his own.” Id. at 1, 3. Plaintiff also 27 stated that the District Court had not addressed the complexity of the legal and medical 28 issues presented by his case. Id. Plaintiff cited Tilei v. McGuinness, 642 F. App’x 719, 1 722 (9th Cir. 2016), in which the Ninth Circuit found plaintiff’s “physical and mental 2 capacity to be a relevant consideration” in the decision whether to appoint counsel. Id. at 3 8. Plaintiff reiterated his “request for an attorney to assist him in advancing and 4 prosecuting his civil complaint.” Id. 5 On December 11, 2019, the District Court denied plaintiff’s motion for 6 reconsideration. Doc. No. 18. The District Court found that plaintiff’s “previous filings 7 with the Court” demonstrated that, notwithstanding plaintiff’s arguments to the contrary, 8 “he is capable of conducting legal research, presenting arguments … and understanding 9 the case.” Id. at 3. 10 On March 20, 2020, plaintiff filed a “Motion to Stand on His Pleadings,” wherein 11 he requested that the District Court enter final judgment so that he could pursue an 12 appeal. Doc. No. 29. In that motion, plaintiff asserted, inter alia, that the District Court 13 “erred in its rulings denying [his] motion for appointment of counsel [and] denying [his] 14 motion for reconsideration.” Id. at 6. Specifically, plaintiff complained that the District 15 Court did not consider his “substantial medical issues, including physical incapacity to 16 adequately advance and prosecute” this matter. Id. at 4-5. Plaintiff again asserted that 17 the District Court’s refusal to appoint counsel to assist him was contrary to the Ninth 18 Circuit’s holding in Tilei v. McGuinness, 642 F. App’x at 722. Id. at 5. 19 On May 4, 2020, the District Court denied plaintiff’s “Motion to Stand on His 20 Pleadings,” finding that “plaintiff is not permitted to appeal the Court’s denial of his 21 Motion to Appoint Counsel until a final judgment is entered.” Doc. No. 36 at 5. The 22 District Court further found plaintiff’s motion to be an “attempt[] to create appellate 23 jurisdiction through manipulation.” Id. at 3. 24 On July 29, 2020, plaintiff filed the Motion and the RJN presently before the 25 Court. 26 / / 27 / / 28 / / 1 II. DISCUSSION 2 A. Request for Judicial Notice 3 Plaintiff requests that the Court take judicial notice of the same federal court orders 4 submitted with his first motion to appoint counsel. Compare RJN at 10-13, 22-23 and 5 28-30 with Doc. No. 5 at 31-39. Plaintiff also requests the Court take judicial notice of 6 three unpublished memorandum opinions from the Ninth Circuit, including an opinion 7 from Tilei v. McGuinness. See RJN at 14-21; 24-26. 8 Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of 9 facts that “[are] generally known within [its] territorial jurisdiction” or “can be accurately 10 and readily determined from sources whose accuracy cannot reasonably be questioned.” 11 Fed. R. Evid. 201(b)(1) and (2). This includes “‘matters of public record[,]’ including 12 relevant opinions of other courts.” Soares v. Flowers Foods, Inc., 320 F.R.D. 464, 469 13 n.2 (N.D. Cal. 2017) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 14 2001)) (alteration in original). However, the Court takes notice only “of the existence of 15 the opinion, which is not subject to reasonable dispute.” S.B. by and through Kristina B. 16 v. Cal. Dep’t of Educ., 327 F.Supp.3d 1218, 1228 n.1 (E.D. Cal. 2018). The Court “may 17 not,” and does not, “take judicial notice of findings of fact from another case.” Walker v. 18 Woodford, 454 F. Supp. 2d 1007, 1022 (S.D. Cal. 2006) (citations omitted). 19 B. Appointment of Counsel 20 “There is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 21 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). District Courts have discretion, 22 however, pursuant to 28 U.S.C § 1915(c)(1) to “request” that an attorney represent 23 indigent civil litigants upon a showing of exceptional circumstances. See Terrell v. 24 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 25 (9th Cir. 1989). “A finding of exceptional circumstances requires an evaluation of both 26 the ‘likelihood of success on the merits and the ability of the plaintiff to articulate his 27 claims pro se in light of the complexity of the legal issues involved.’” Terrell, 935 F.2d at 28 / / 1 1017 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). “Neither … 2 is dispositive and both must be viewed together before making a decision.” Id. 3 1. Likelihood of Success 4 As to the first consideration, plaintiff states that he “may succeed on the merits” of 5 his claims. Mot. at 4. In denying plaintiff’s motion for reconsideration, the District 6 Court previously found that “[p]laintiff has failed to demonstrate whether there is a 7 likelihood of success on the merits.” Doc. No. 18 at 3. The District Court subsequently 8 denied plaintiff’s motion for a preliminary injunction and noted that “to prevail … 9 [p]laintiff must demonstrate that he is likely to succeed on the merits of his Eighth 10 Amendment claim.” Doc. No. 25 at 4. Significantly, the District Court cited plaintiff’s 11 medical records as undermining many of his allegations. Id. at 5. Plaintiff has not 12 provided the Court with new facts or legal authority warranting a departure from the 13 District Court’s findings. 14 2. Plaintiff’s Ability to Pursue His Claims 15 As to the second consideration, plaintiff states that he suffers from multiple 16 medical issues, including but not limited to rheumatoid arthritis, chronic migraines, 17 exhaustion, fatigue, traumatic spinal injury, chronic pain, and suicidal ideation. Mot. at 18 5-6. According to plaintiff, due to his “numerous medical conditions and medical 19 incapacity,” he is “unable to draft motions and conduct legal research.” Mot. at 3-4. 20 These same facts were previously before the District Court on plaintiff’s first motion to 21 have counsel appointed, on his motion for reconsideration of the District Court’s denial 22 of that motion, and on his motion to “stand” on his pleadings. See Doc. No. 5 at 2-3; 23 Doc. No. 13 at 2-3; Doc. No. 29 at 4-5. The District Court has already found plaintiff’s 24 multiple medical complaints do not create exceptional circumstances, and this Court finds 25 that plaintiff’s repetition of these facts does not justify a different outcome on this 26 renewed motion. 27 Plaintiff also reports that he has been seen by a neurosurgeon who has 28 recommended he undergo spinal surgery. Mot. at 9-10. Plaintiff states once the surgery 1 is done he will be “hospitalized and immobilized for an indefinite amount of time.” Id. at 2 13. However, plaintiff has not stated when his surgery will take place, only that it could 3 be “at any moment,” id., and he is not currently hospitalized. The Court finds that neither 4 plaintiff’s continued complaints of “numerous medical conditions and medical 5 incapacity” (Mot. at 3) nor his unscheduled spinal surgery constitute an exceptional 6 circumstance. 7 Plaintiff also asserts that his case is “legally complex.” Mot. at 3. The District 8 Court has already found otherwise, describing plaintiff’s claims as “a typical conditions 9 of confinement claim and ‘relatively straightforward.’” See Doc. No. 10 at 4-5 (quoting 10 Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015)). Plaintiff also states that he 11 lacks legal training such that the assistance of counsel would better enable him to 12 investigate his claims and examine witnesses. Mot. at 7-8. Plaintiff made the same 13 argument to the District Court in each of his previous requests to have counsel appointed 14 and does not raise any new facts relevant to this issue in his Motion. As the District 15 Court has already found, the hardships identified by plaintiff are shared by all 16 incarcerated litigants lacking legal expertise. Doc. No. 18 at 3. These “difficulties” faced 17 by all pro se litigants do not, therefore, “indicate exceptional factors.” See Wood v. 18 Housewright, 900 F.2d 1332, 1335–1336 (9th Cir. 1990). 19 Furthermore, in addition to multiple requests to have counsel appointed (see Doc. 20 Nos. 5, 13, 29, 32), plaintiff has filed a Motion for Preliminary Injunction, a reply in 21 support of that motion, a Notice of Appeal, and a Motion to Strike Declaration of 22 Defendant, in addition to the instant Motion and RJN. See Doc. Nos. 9, 24, 38, 52. Each 23 of these filings was supported by citations to relevant legal authority, lengthy recitations 24 of fact, and numerous declarations and other exhibits. Thus, despite his medical condition 25 and his lack of legal training, plaintiff continues to demonstrate his ability to effectively 26 articulate his claims and communicate with the Court in this action. See Doc. No. 18 at 3 27 (observing that plaintiff’s filings in this case “demonstrate his is capable of conducting 28 legal research [and] presenting arguments”). It should also be noted that the Court has 1 previously granted plaintiff additional time to meet deadlines and will continue to do so 2 for good cause shown. Doc. Nos. 26, 34. 3 The various district court orders submitted by plaintiff do not change the Court’s 4 conclusion. As noted above, these orders were all before the District Court on plaintiff’s 5 first request for the appointment of counsel and do not represent a new legal or factual 6 basis for the appointment of counsel. Moreover, they are not binding on the Court, 7 whose decision whether to appoint counsel is left to its “sound discretion.” Agyeman v. 8 Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Two of the unpublished 9 Ninth Circuit opinions submitted by plaintiff simply stand for the proposition that the 10 Court should consider plaintiff’s medical condition in determining whether to appoint 11 counsel. See Doc. No. 54 at 15-16 (memorandum opinion in Tilei v. Hasadri, dated 12 February 14, 2013) (remanding to district court for consideration of plaintiff’s motion to 13 appoint counsel “in light of his medical condition”); id. at 25-26 (memorandum opinion 14 in Tilei v. Cal. Dep’t of Corr. and Rehab., dated March 14, 2016) (noting that plaintiff’s 15 “medical condition is a relevant characteristic that the district court should consider” but 16 declining to “pre-judge the outcome of that inquiry”). As is demonstrated by the District 17 Court’s prior orders and the foregoing discussion, the Court has considered whether 18 plaintiff’s medical condition is an “exceptional circumstance” and in the exercise of its 19 discretion has determined it is not. 20 Finally, plaintiff submits the Ninth Circuit’s March 14, 2016 memorandum opinion 21 in Tilei v. McGuinness, in which the court found that the decision not to appoint counsel 22 for plaintiff was error. See Doc. No. 54 at 21; see also 642 F. App’x 719 (2016). As 23 noted, plaintiff has already cited this decision to the Court. Doc. No. 13 at 8; Doc. No. 29 24 at 5. Furthermore, the Court notes that the Ninth Circuit found that plaintiff “introduced 25 evidence that, due to his medical incapacity, he was unable to draft motions and conduct 26 legal research.” 642 F. App’x at 722. As set forth above, however, plaintiff’s 27 considerable filings in this action demonstrate the opposite. 28 / / 1 Accordingly, plaintiff's Motion is DENIED WITHOUT PREJUDICE. 2 ORDER 3 For the reasons set forth above, plaintiff's Motion for New Determination of 4 || Appointment of Counsel (Doc. No. 50) is DENIED WITHOUT PREJUDICE. 5 IS SO ORDERED. 6 ||Dated: August 6, 2020 Me ) 7 WU SSS g Hori. Karen S. Crawford United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28