Salmen v. California Department of Correction Rehabilitation ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUSTIN SALMEN, CDCR #BK-5881, Case No.: 3:20-cv-02088-GPC-KSC 12 Plaintiff, ORDER DENYING MOTION TO 13 v. APPOINT COUNSEL 14 CALIFORNIA DEP’T OF [Doc. No. 11] CORRECTIONS AND 15 REHABILITATION; S. ROBERTS; M. 16 GLYNN; J. HODGES; A. KENDALL; DR. CHAU; H. FRANKLIN; S. 17 ANDERSON; A. SHITTU; S. GATES, 18 Defendants. 19 20 Plaintiff Justin Salmen (“plaintiff”) is proceeding pro se and in forma pauperis in 21 this civil rights action pursuant to Title 42, United State Code, Section 1983, alleging 22 defendants violated his rights under the United States Constitution. See Doc. No. 7. Before 23 the Court is plaintiff’s Motion for Appointment of Counsel (the “Motion”). Doc. No. 11. 24 For the reasons that follow, plaintiff’s Motion is DENIED WITHOUT PREJUDICE. 25 I. BACKGROUND 26 On October 22, 2020, plaintiff filed this action, asserting his constitutional rights to 27 due process and freedom from cruel and unusual punishment had been violated. Doc. 28 / / 1 No. 1 at 6-8. Also on October 22, 2020, plaintiff requested leave to proceed in forma 2 pauperis and moved to have counsel appointed. Doc. Nos. 2, 3. 3 On November 2, 2020, the District Court, having conducted the sua sponte screening 4 required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), dismissed plaintiff’s complaint for 5 failure to state a claim.2 See Doc. No. 6. Plaintiff was afforded leave to amend his 6 complaint to correct the deficiencies identified in the District Court’s order. Id. at 11. The 7 District Court also granted plaintiff’s motion to proceed in forma pauperis but denied his 8 motion for the appointment of counsel without prejudice, explicitly finding there were “no 9 ‘exceptional circumstances’” warranting the appointment of counsel at that time. Id. at 5. 10 On November 9, 2020, plaintiff filed a First Amended Complaint (the “FAC”). Doc. 11 No. 7. As before, District Court conducted a sua sponte screening of plaintiff’s FAC 12 pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Doc. No. 8. at 2-3. By order dated 13 November 23, 2020, the District Court dismissed plaintiff’s First Amendment claims and 14 his claims against defendant Hodges for supervisory liability, but found that plaintiff’s 15 claims against defendant Chau (“defendant”) were sufficient to clear the “low threshold” 16 for screening.3 See id. at 4. The District Court directed plaintiff to complete a U.S. Marshal 17 Form 285 so that service could be effected upon defendant. Id. at 8. Plaintiff was further 18 ordered that he must serve upon defendant or his counsel “a copy of every further pleading, 19 motion, or other document submitted for the Court’s consideration pursuant to Fed. R. Civ. 20 P. 5(b).” Id. at 9. 21 On December 10, 2020, plaintiff filed the Motion presently before the Court. Doc. 22 No. 11. 23 / / 24 25 1 All page references are to the ECF-generated page numbers. 26 2 The District Court also found that defendant California Department of Corrections and Rehabilitation 27 was immune from suit and accordingly dismissed the claims against it. See Doc. No. 6 at 8. 3 The District Court found plaintiff had waived his claims against the remaining defendants. See Doc. No. 28 1 II. DISCUSSION 2 “There is no absolute right to counsel in civil proceedings.” Hedges v. Resolution 3 Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). However, District Courts have discretion 4 to “request” that an attorney represent indigent civil litigants upon a showing of 5 “exceptional circumstances.” See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 6 Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). “That a pro se litigant may be 7 better served with the assistance of counsel is not the test.” Okler v. MCC IMU Prison, No. 8 3:18-cv-05458-RJB-TLF, 2019 WL 461143, at *1 (W.D. Wash. Feb. 5, 2019). Instead, 9 the Court “must determine whether a) there is a likelihood of success on the merits; and b) 10 the prisoner is unable to articulate his claims in light of the complexity of the legal issues 11 involved.” Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014). “None of these factors 12 is dispositive; rather they must be considered cumulatively.” Id. 13 A. Likelihood of Success 14 Plaintiff does not identify, nor does the Court’s independent review of the record 15 reveal, any facts to support a finding that he may succeed on the merits of his Eighth 16 Amendment claim. Although that claim survived the District Court’s initial screening, as 17 the District Court stated, that is a “low threshold.” Doc. No. 8 at 4. The District Court’s 18 determination that plaintiff may be able to state a claim against defendant “by no means 19 demonstrates that [he] is likely to win.” Ortega v. CSP-SAC Prison Officials, No. 2:08– 20 00588 SOM, 2010 WL 2598228, at *1 (D. Hawai’i June 7, 2010). The Court finds this 21 factor weighs against appointing counsel to represent plaintiff in this matter. 22 B. Plaintiff’s Ability to Pursue His Claims 23 The Court is also not persuaded that plaintiff lacks the ability to pursue his claims in 24 light of the complexity of the legal issues presented. Plaintiff seeks redress for defendant’s 25 alleged deliberate indifference to his medical needs, a “relatively straightforward” 26 conditions-of-confinement claim. Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 27 2015). Despite his asserted “mental illness” (Mot. at 1), plaintiff has consistently 28 demonstrated the ability to advocate on his own behalf. For example, when his initial 1 complaint was dismissed, plaintiff was able to file the FAC, which survived (in part) the 2 District Court’s screening. Plaintiff has also filed two motions for the appointment of 3 counsel, and a motion for leave to proceed in forma pauperis. These filings demonstrate 4 to the Court that plaintiff understands basic litigation procedure and can effectively 5 articulate his claims. 6 Plaintiff also complains that he is “in a cell,” “can[’]t afford a lawyer” and will have 7 difficulty “present[ing] any facts” without the assistance of counsel. Mot. at 1, 2. These 8 facts were also before the District Court on plaintiff’s first motion to appoint counsel (see 9 Doc. No. 6 at 4) and the Court finds no reason to depart from the District Court’s ruling 10 that they did not create exceptional circumstances. Regardless, these hardships are shared 11 by all incarcerated litigants lacking legal expertise, and do not “indicate exceptional 12 factors.” See Wood v. Housewright, 900 F.2d 1332, 1335–1336 (9th Cir. 1990). “Even if 13 it is assumed that [p]laintiff is not well versed in the law and that he has made serious 14 allegations which, if proved, would entitle him to relief, his case is not exceptional.” 15 Williams v. Lozano, No. 1:15-cv-01250-BAM (PC), 2018 WL 558765, at *1 (E.D. Cal. 16 Jan. 25, 2018). Moreover, while the Court is sympathetic to the fact that plaintiff’s access 17 to the law library may be limited under current conditions, as plaintiff’s exhibit shows, this 18 difficulty is also shared by many incarcerated litigants. See Mot. at 4 (indicating 19 “[i]ncreasing restrictive measures” due to COVID-19). If plaintiff is unable access the law 20 library or otherwise requires additional time to meet the Court’s deadlines, he may make 21 such a request to the Court. The Court will grant reasonable requests for additional time 22 for good cause shown. 23 Finally, plaintiff states he is unable to meet the Court’s “demands” regarding service 24 of the FAC and other motions or pleadings, citing his lack of funds and supplies. Mot. at 25 2. However, because plaintiff is proceeding in forma pauperis, he will receive assistance 26 serving his pleadings and other papers, as is set forth in the District Court’s November 23, 27 2020 Order and the IFP Package plaintiff has received. See Doc. No. 8 at 8. The Court 28 / / 1 || finds plaintiff's lack of access to mailing supplies and postage does not constitute an 2 || exceptional circumstance. 3 || C. Conclusion 4 For the reasons set forth above, the Court finds plaintiff has not met his burden to 5 |{establish exceptional circumstances warranting the appointment of counsel to represent 6 || plaintiff in this matter at taxpayer expense. Plaintiff may renew his request if his situation 7 changes such that he can make the necessary showing that he is both likely to succeed on 8 merits of his claims, and unable to competently articulate those claims. Cano, 739 F.3d 9 1219. 10 ORDER 11 Plaintiff's Motion for Appointment of Counsel (Doc. No. 11) is DENIED 12 || WITHOUT PREJUDICE. 13 || IT IS SO ORDERED. 14 Dated: December 18, 2020 YX) 15 Mfficae —_—_ = 16 Hori. Karen S. Crawford United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28