Evans v. Ryan et al

Filing 230

ORDER: Petitioner's Motion to Object, 220 is denied. Signed by Senior Judge James A Teilborg on 9/14/2018. (REK)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ryan Evans, No. CV-17-00252-PHX-JAT (BSB) Plaintiff, 10 11 v. 12 ORDER Charles Ryan, et al., 13 Defendants. 14 15 Pending before the Court is Ryan Evans’ (“Plaintiff’s”) Motion to Object pursuant 16 to Fed. R. Civ. P. 72(a). (Doc. 220). 17 I. Procedural Background 18 Plaintiff filed a non-habeas civil action on January 26, 2017 alleging that 19 Defendants violated his Eighth and Fourteenth Amendment rights, and were negligent 20 under state law, by failing to provide Plaintiff adequate medical care related to a “fracture 21 of his left [clavicle] suffered in a motor vehicle accident” while he was in the custody of 22 the Arizona Department of Corrections (“ADC”) and while he was under the care of 23 Corizon Correctional Health, Inc. (“Corizon”). (Doc. 1). 24 25 On January 26, 2017, Plaintiff filed an application for leave to proceed in forma pauperis. (Doc. 2). On May 23, 2018, Plaintiff filed his third motion1 for appointment of counsel. 26 27 28 1 Plaintiff filed his first motion for appointment of counsel on January 28, 2018, (Doc. 157), which was denied by Magistrate Judge Bridget S. Bade (“Magistrate Judge”) on January 31, 2018, (Doc. 162). Plaintiff filed his second motion for appointment of counsel on March 16, 2018, (Doc. 193), which was similarly denied by the Magistrate 1 (Doc. 209). Plaintiff asserted that his case was complex by the virtue that it involved a 2 denial of medical treatment, and that he needed assistance to prepare for trial due to his 3 lack of legal training. (Id.) On June 5, the Magistrate Judge denied Plaintiff’s third 4 motion for appointment of counsel because: (1) there is no constitutional right to the 5 appointment of counsel in a civil case; and (2) Plaintiff had not shown “exceptional 6 circumstances” as required by the Ninth Circuit to warrant appointment of counsel by the 7 Court pursuant to 28 U.S.C. § 1915(e)(1). (Doc. 210). The Magistrate Judge found 8 Plaintiff’s claim that his case was complex conclusory and noted that appointment of 9 counsel to prepare for trial would be premature because the case had not been set for trial 10 and the dispositive motions deadline had not expired. (Id.) 11 On June 15, Plaintiff filed a motion to reconsider the Magistrate Judge’s order 12 denying his motion to appoint counsel. (Doc. 217). On June 19, the Magistrate Judge 13 denied this motion. (Doc. 218). 14 On July 19, Plaintiff filed a motion to object to the Magistrate Judge’s decision to 15 deny Plaintiff’s motion for reconsideration of appointment of counsel, (Doc. 220), which 16 this Court treats as an appeal from the Magistrate Judge. 17 II. Governing Law 18 In nondispositive matters, a district judge “must consider timely2 objections and 19 modify or set aside any part of the [magistrate judge’s] order that is clearly erroneous or 20 is contrary to law.” Fed. R. Civ. P. 72(a). To determine that a matter is nondispositive, 21 the Court must “examine whether the denial of the motion effectively disposes of a claim 22 or defense or precludes the ultimate relief sought.” Bastidas v. Chappell, 791 F.3d 1155, 23 1164 (9th Cir. 2015). 24 Under the District of Arizona’s Local Rules of Civil Procedure (“Local Rules”), a 25 district judge “will ordinarily deny a motion for reconsideration of an Order absent a 26 27 28 Judge on March 19, 2018, (Doc. l94). 2 A party must serve and file its objections to an order within 14 days after being served with a copy of the order. Fed. R. Civ. P. 72(a). Plaintiff objected 30 days after the Magistrate Judge denied Plaintiff’s motion for reconsideration. The Court, however, will consider the merits of Plaintiff’s motion. Cf. Fed R. Civ. P. 72(a). -2- 1 showing of manifest error or a showing of new facts or legal authority that could not have 2 been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g). The Local 3 Rules operate with the “force of law” and bind the Court and the parties. Prof’l Programs 4 Grp. v. Dep’t of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994) (quoting Martel v. Cty. of 5 Los Angeles, 21 F.3d 940, 946–47 (9th Cir. 1994)). Furthermore, although courts must 6 construe pro se filings liberally, Woods v. Carey, 525 F.3d 886, 889–90 (9th Cir. 2008), 7 these rules apply equally to pro se litigants such as Plaintiff. LRCiv 83.3(c)(1); Ghazali v. 8 Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per curiam) (upholding dismissal of pro se action 9 where the prisoner failed to comply with a Nevada local rule). 10 There is no constitutional right to appointed counsel in a civil case such as this 11 one. Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985); see also Hedges v. 12 Resolution Tr. Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (“[T]here is no absolute right to 13 counsel in civil proceedings.”). A “court may request an attorney to represent any person 14 unable to afford counsel.” 28 U.S.C. § 1915(e)(1) (emphasis added). Federal courts, 15 however, have no authority to coercively appoint counsel under Section 1915. Mallard v. 16 U. S. Dist. Court, 490 U.S. 296, 310 (1989). A court may only appoint counsel under 17 Section 1915 under “exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 18 1236 (9th Cir. 1984). When determining whether exceptional circumstances exist, a 19 court’s decision should be “based on such factors as the likelihood of success on the 20 merits and the ability of the plaintiff to articulate his claims in light of their complexity.” 21 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990) (citing Wilborn v. 22 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Neither factor is dispositive; “both 23 must be viewed together before reaching a decision on request of counsel . . . .” Wilborn, 24 789 F.2d at 1331. 25 III. Analysis 26 The Magistrate Judge’s order denying Plaintiff’s motion for reconsideration of the 27 previous order denying his motion requesting appointment of counsel is nondispositive. 28 See Marquez v. Corizon Health Servs., 710 F. App’x 301, 301 (9th Cir. 2018). That order -3- 1 did not dispose of any claims or defenses. Thus, this Court will determine whether the 2 Magistrate Judge’s order was contrary to law or made in clear error. 3 The Magistrate Judge appropriately applied the standard of review in Local Rule 4 7.2(g). The Magistrate Judge found, and this Court agrees, that Plaintiff has not presented 5 new facts or legal authority that could not have been previously presented to the 6 Magistrate Judge. Similarly, Plaintiff has not made a showing of manifest error. Plaintiff 7 made the same conclusory statements in his motion to reconsider as were presented in his 8 original motion requesting appointment of counsel: that Plaintiff is unable to present an 9 effective defense because the case is a medical case that requires expert testimony and 10 that the Plaintiff is “unlettered in the law.” (Doc. 220; see also Docs. 209, 217). Plaintiff 11 proffers his pro se status as evidence of the necessity for counsel. As explained by the 12 Magistrate Judge, however, Plaintiff’s difficulties are not exceptional when compared to 13 the difficulties faced by most other pro se prisoner litigants. (Doc. 210). See 14 Housewright, 900 F.2d at 1335 (explaining that prisoner litigants’ lack of a legal 15 education does not constitute “exceptional circumstances”); Zamaro v. Moonga, 656 F. 16 App’x 297, 299 (9th Cir. 2016) (explaining that lack of adequate knowledge of “complex 17 legal and medical issues” is not an exceptional circumstance “in light of the legal 18 competence of most prisoners in similar situations.”); see also Sands v. Lewis, 886 F.2d 19 1166, 1169 (9th Cir. 1989) (“[T]he Constitution does not require the elimination of all 20 economic, intellectual, and technological barriers to litigation.”). Plaintiff has made no 21 acceptable argument that the Magistrate Judge’s order contained an error of such nature 22 that would require reconsideration of the order. Because Plaintiff did not satisfy either of 23 the requirements under Local Rule 7.2(g), the Magistrate Judge correctly denied the 24 motion for reconsideration. 25 26 This Court will review the Plaintiff’s original objection, in light of the information provided in Plaintiff’s objection, de novo. 27 Plaintiff evokes Parsons v. Ryan, No. CV-12-0301-PHX-DKD, 2018 WL 28 3239691 (D. Ariz. June 22, 2018) as evidence that medical cases may require expert -4- 1 testimony which is easier to obtain with assistance of counsel. (Doc. 220). However, 2 counsel is warranted only in limited situations; specifically, where complex medical 3 issues impede the plaintiff’s ability to articulate their medical claims pro se. See, e.g., Tai 4 Huynh v. Callison, 700 F. App’x 637, 639 (9th Cir. 2017) (holding that a plaintiff’s 5 medical issues were complex when related to multidrug-resistant tuberculosis when the 6 Center for Disease Control had issued warnings regarding the failure to take medications 7 as prescribed). In this case, Plaintiff has not shown himself incapable of articulating his 8 claims pro se, nor has he shown that the medical issues presented in his case are 9 sufficiently complex. 10 Plaintiff further claims that Defendants “continue to display deliberate 11 indifference to [his] serious medical needs.” (Doc. 220). This reference to actions and 12 inactions by Defendants is outside of the scope of the original complaint and, therefore, 13 these claims are unrelated to Plaintiff’s request for appointment of counsel. 14 Plaintiff’s final claim3 is that Defendants are “us[ing] [his] inability to properly 15 litigate his claim against him.” (Doc. 220). As discussed previously, Plaintiff has not 16 demonstrated that he is experiencing difficulty in litigating this case because of the 17 complexity of the issues involved. There are many unrepresented prisoner litigants who 18 bring healthcare complaints before the court. See, e.g., Zamaro, 656 F. App’x at 298; Tai 19 Huynh, 700 F. App’x at 638; Wills v. Pompey, 8 F. App’x 647, 648 (9th Cir. 2001); 20 Housewright, 900 F.2d at 1333. The frequency of pro se prisoner complaints regarding 21 medical issues demonstrates that Plaintiff’s circumstances are not, by definition, 22 exceptional. Absent evidence of exceptional circumstances, Plaintiff’s request for 23 appointment of counsel in this civil case must be denied. 24 ... 25 ... 26 3 27 28 Plaintiff also mentions his January 2018 filing of a Motion to Recuse the Magistrate Judge for failure to apply the law. (Doc. 160). Plaintiff claims that he “never received a response from this [C]ourt” regarding the motion in question. (Doc. 220). Plaintiff’s Motion to Recuse was denied by the Magistrate Judge. (Doc. 190). Plaintiff has not raised any objections to the denial order with the Court. -5- 1 IV. Conclusion 2 Based on the foregoing. 3 IT IS ORDERED that Petitioner’s Motion to Object, (Doc. 220), is denied. 4 Dated this 14th day of September, 2018. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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