Abner v. Hernandez

Filing 15

ORDER by Judge Lucy H. Koh denying 11 Motion to Appoint Counsel; granting 1 Request to Proceed In Forma Pauperis (lhklc3, COURT STAFF) (Filed on 7/24/2013)

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 12 13 14 15 BRIAN KEITH ABNER, ) ) Plaintiff, ) v. ) ) FRANCISCO HERNANDEZ #3746, THE SAN ) JOSE CALIFORNIA POLICE DEPARTMENT ) INTERNAL AFFAIRS, ) ) Defendant. ) ) Case No.: 13-CV-01121-LHK ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 16 17 18 19 20 21 Plaintiff Brian Keith Abner (“Mr. Abner” or “Plaintiff”), who is currently hospitalized at the Metropolitan Hospital Center in New York and is proceeding pro se, has filed an action under 42 U.S.C. § 1983. The Complaint’s case caption identifies the following Defendants: The San Jose California Police Department Internal Affairs Mr. Francisco Hernandez # 3746 22 The Complaint’s section identifying defendants identifies only one defendant, “Mr. Francisco 23 Hernandez #3746.” However, in the statement of the claim, Mr. Abner alleges that FBI agents and 24 police officers violated his civil rights. As such, it is not clear who the defendants are in this case. 25 Before the Court is Mr. Abner’s Motion to Appoint Counsel. See ECF No. 11. Having 26 considered Mr. Abner’s submission and the relevant law, and for good cause shown, the Court 27 hereby DENIES Mr. Abner’s Motion to Appoint Counsel. However, in light of Mr. Abner’s lack 28 1 Case No.: 13-CV-01121-LHK ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 1 of funds, the Court hereby GRANTS Mr. Abner’s Request to Proceed In Forma Pauperis. See 2 ECF No. 1. 3 I. 4 BACKGROUND Mr. Abner filed his Complaint and his Request to Proceed In Forma Pauperis on February 5 28, 2013 in the Southern District of New York. See ECF No. 1 (“IFP Request”); ECF No. 2 6 (Complaint). On March 20, 2013, the case was transferred to the undersigned judge in this District. 7 See ECF Nos. 6, 7. When transferring this case to the Northern District of California, Chief Judge 8 Loretta Preska of the Southern District of New York declined to rule on Mr. Abner’s IFP request. 9 See ECF No. 6, at 2 (“Whether Plaintiff should be permitted to proceed further without payment of United States District Court For the Northern District of California 10 fees is a determination to be made by the transferee court.”). 11 Mr. Abner amended his Complaint on March 18, 2013, April 11, 2013, and April 18, 2013. 12 See ECF Nos. 9, 10, 12. Mr. Abner’s allegations include, among other things, claims that officers 13 from the San Jose Police Department falsely arrested and threatened him. See Third Amended 14 Complaint (“TAC”), ECF No. 12, at 9-12. Mr. Abner also alleges that Defendant Francisco 15 Hernandez failed to adequately investigate Mr. Abner’s complaints against members of the San 16 Jose California Police Department, and that Defendant tampered with evidence related to Mr. 17 Abner’s complaints. See id.; see also ECF No. 6. Mr. Abner seeks damages of $100,000,000,1 18 dismissal of his probation and police registration, and correction of his sex offender status. See 19 TAC at 15. On April 11, 2013, Mr. Abner filed his Motion to Appoint Counsel. ECF No. 11 (“Mot.”). 20 21 At the June 19, 2013 Case Management Conference and in the Court’s subsequent Case 22 Management Order, the Court referred Mr. Abner to the Federal Legal Assistance Self-Help Center 23 (“FLASH”), located at the San Jose Federal Courthouse, 280 South 1st Street, 2nd Floor, Room 24 2070, San Jose, CA 95113. See ECF No. 14. FLASH can be contacted by telephone at 408-297- 25 1480. 26 27 1 28 This figure is inconsistent throughout Mr. Abner’s filings. 2 Case No.: 13-CV-01121-LHK ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 1 II. ANALYSIS 2 A. 3 Mr. Abner requests the appointment of counsel based on his indigent status. See Mot. at 1- 4 5 Motion for Appointment of Counsel 2. Mr. Abner does not provide any additional justifications for the appointment of counsel. Id. It is well established that “there is no absolute right to counsel in civil proceedings.” Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994). Thus, 7 federal courts do not have the authority to “require an unwilling attorney to represent an indigent 8 litigant in a civil case.” Mallard v. United States District Court, 490 U.S. 296, 298 (1989). 9 However, district courts do have discretion, pursuant to 28 U.S.C. § 1915(e)(1), to “request” that 10 United States District Court For the Northern District of California 6 an attorney represent indigent civil litigants upon a showing of exceptional circumstances. See 15 11 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 12 counsel.”); see also Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (“The 13 decision to appoint such counsel is within the sound discretion of the trial court and is granted only 14 in exceptional circumstances.”) (internal quotation marks and citation omitted); United States v. 15 $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) (“Appointment of counsel under 16 [Section 1915(e)(1)] is discretionary, not mandatory.”). 17 “A finding of exceptional circumstances requires an evaluation of both the ‘likelihood of 18 success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the 19 complexity of the legal issues involved.’ Neither of these issues is dispositive and both must be 20 viewed together before reaching a decision.’” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 21 1991) (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 22 At this time, the Court does not find that exceptional circumstances exist so as to justify an 23 appointment of counsel. Specifically, the Court finds that Mr. Abner is unlikely to succeed on the 24 merits because his Complaint consists largely of conclusory allegations that lack factual support. 25 Several of Mr. Abner’s claims, such as his claims of false arrest and unlawful detention, are based 26 upon his implausible belief that an FBI agent “clone” of Mr. Abner committed Mr. Abner’s prior 27 offenses and orchestrated a conspiracy to frame him. See TAC at 4, 8, 9, 11. While Mr. Abner 28 3 Case No.: 13-CV-01121-LHK ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 1 does make two allegations that are conceivable—that Defendant Hernandez did not give Mr. Abner 2 the opportunity to describe the appearance of one of the two police officers who allegedly 3 threatened him, and that two FBI agents told Mr. Abner that Defendant Hernandez tampered with 4 the tape recorder evidence of his complaints, see TAC at 3-4, 6—the Court does not find these two 5 allegations sufficient to demonstrate that Plaintiff will likely prevail on the merits. Moreover, Mr. 6 Abner’s legal claims, and the factual bases for those claims, are not so complex as to require the 7 appointment of counsel. The Court believes that, should this case proceed to trial, the issues will 8 be relatively straightforward and will turn in large part on the trier of fact’s estimation of Mr. 9 Abner’s and the officers’ credibility. United States District Court For the Northern District of California 10 Thus, the Court finds that Mr. Abner has not provided a showing of “exceptional 11 circumstances,” and appointment of counsel would not be an appropriate use of scarce judicial 12 resources at this stage of the proceedings. Accordingly, the Court DENIES WITHOUT 13 PREJUDICE Mr. Abner’s Motion to Appoint Counsel. 14 B. Request to Proceed In Forma Pauperis 15 Mr. Abner also requests to proceed in forma pauperis. See IFP Request at 1. Pursuant to 16 28 U.S.C. § 1915(a)(1), a court “may authorize the commencement . . . of any suit . . . without 17 prepayment of fees or security therefor” by a person who submits an affidavit that includes a 18 statement of the person’s assets and shows why the person is “unable to pay such fees or give 19 security therefor.” 28 U.S.C. § 1915(a)(1). Mr. Abner has made such a showing here based on the 20 fact that he is currently unemployed, receives only social security benefits, and has no money or 21 assets. See IFP Request at 1-2. 22 Section 1915(e)(2) additionally requires that the court dismiss an action brought in forma 23 pauperis if the action is “frivolous or malicious” or “fails to state a claim on which relief may be 24 granted.” Although the Court finds that Mr. Abner’s claims are unlikely to prevail on the merits, 25 the Court cannot say the action is so frivolous or insincere as to deny in forma pauperis status. 26 Therefore, the Court GRANTS Mr. Abner’s Request to Proceed In Forma Pauperis. 27 28 4 Case No.: 13-CV-01121-LHK ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 1 2 III. CONCLUSION For the foregoing reasons, the Court DENIES Mr. Abner’s Motion to Appoint Counsel with 3 leave to amend, and GRANTS Mr. Abner’s Request to Proceed In Forma Pauperis. 4 IT IS SO ORDERED. 5 6 7 Dated: July 24, 2013 _________________________________ LUCY H. KOH United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No.: 13-CV-01121-LHK ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS