Shepard v. Borum et al

Filing 120

ORDER DENYING Plaintiff's 118 Motion for Appointment of Counsel, signed by Magistrate Judge Helena M. Barch-Kuchta on 1/4/2023. (Marrujo, C)

Case 1:18-cv-00277-ADA-HBK Document 120 Filed 01/04/23 Page 1 of 4
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAMONT SHEPARD,

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Plaintiff,

Case No. 1:18-cv-00277-ADA-HBK
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL

v.
(Doc. No. 118)
M. BORUM, J. ACEBEDO,
Defendants.

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Pending before the Court is Plaintiff’s Motion for Appointment of Counsel (“Motion “)

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and Objection to Defendant’s Notice of Appearance of Additional Counsel (“Objection”)

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concurrently filed on December 12, 2022. (Doc. Nos. 118, 119). In his Motion, Plaintiff requests

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the Court to appoint him counsel because: he cannot afford counsel, his current classification does

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not provide him access to the law library, he has limited knowledge of the law, and he believes

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counsel is better positioned to present evidence and cross examine witnesses. (See generally Doc.

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No. 118). In his Objection, Plaintiff wishes to state for “appeal purposes” that he opposes the

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entry of the appearance of a second attorney on behalf of defendants as “unfair.” (See generally

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Doc. No. 119). In passing, Plaintiff requests the “removal” of the judge overseeing the case.

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(Id.). Liberally construed, Plaintiff seeks recusal of the assigned judge(s).

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Procedurally, this civil case is set for a jury trial to commence on March 14, 2023, before

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U.S. District Judge Ana de Alba. (Doc. No. 111). Because this is a civil case, the United States

Case 1:18-cv-00277-ADA-HBK Document 120 Filed 01/04/23 Page 2 of 4
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Constitution does not require appointment of counsel. See Lewis v. Casey, 518 U.S. 343, 354

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(1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not create a right to appointment of

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counsel in civil cases). While a court has discretionary authority to appoint counsel for an

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indigent person to commence, prosecute, or defend a civil action under 28 U.S.C. § 1915,

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Plaintiff paid the filing fee for this action on March 28, 2018 and is not proceeding in forma

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pauperis. See 28 U.S.C. § 1915(e)(1)(stating the court has authority to appoint counsel for people

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unable to afford counsel). Consequently, at the outset, Plaintiff has not demonstrated he qualifies

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for court appointed counsel.

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Even if Plaintiff is determined to be indigent, motions to appoint counsel in civil cases are

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granted only in “exceptional circumstances.” United States v. McQuade, 519 F.2d 1180, 1181

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(9th Cir. 1978). And the inability to afford counsel does not qualify “as an exceptional

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circumstance in a prisoner civil rights case.” Montano v. Solomon, 2010 WL 2403389, at *2

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(E.D. Cal. June 11, 2010); Callender v. Ramm, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10,

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2018).

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Challenges preparing for trial “are ordinary for prisoners pursuing civil rights claim” and

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cannot form the basis for appointment of counsel. Courtney v. Kandel, 2020 WL 1432991, at *1

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(E.D. Cal. Mar. 24, 2020). And while “[p]risoners have a right to meaningful access to the

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courts, but there is no absolute right to use a prison law library.” Springfield v. Khalit, 2018 WL

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5980155, at *3 (E.D. Cal. Nov. 14, 2018) (citing Lewis v. Casey, 518 U.S. 343, 346 (1996)).

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Plaintiff does not allege that officials have not provided him with legal materials he requests

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despite being physically prohibited from accessing the law library due to his classification status.

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And while Plaintiff may have limited knowledge of the law, the Court does not find the issues in

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this case “so complex that due process violations will occur absent the presence of counsel.”

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Bonin v. Vasquez, 999 F.2d 425, 428–29 (9th Cir. 1993). Additionally, Plaintiff has demonstrated

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an ability to litigate this case pro se thus far. He has plausibly stated a claim to survive an initial

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screening, capably filed motions, and survived summary judgment.

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Furthermore, although the assistance of counsel during trial may be helpful, the “relevant

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consideration is not one of convenience” but rather exceptionalness. Howard v. Hedgpeth, 2010
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Case 1:18-cv-00277-ADA-HBK Document 120 Filed 01/04/23 Page 3 of 4
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WL 1641087, at *2 (E.D. Cal. Apr. 20, 2010). General claims that an attorney will be better than

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Plaintiff at conduction cross examination and presenting evidence are not exceptional

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circumstances. Thus, even assuming Plaintiff can demonstrate that he cannot afford counsel,

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Plaintiff has not shown exceptional circumstances to warrant appointment of counsel.

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The Court notes Plaintiff’s objection to the appearance of additional counsel for the

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record. Although noted, the Court is not aware of any legal authority prohibiting a party from

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securing additional counsel. Indeed, additional counsel is the norm when a case proceeds to trial

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against multiple defendants.

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Finally, it is uncertain whether Plaintiff’s passing reference that the judge be removed

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refers to the undersigned or District Judge de Alba. Regardless, Plaintiff provides not factual

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basis for recusal of either judge. Whether a federal judge is required to recuse oneself is

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governed by 28 U.S.C. § 455. Title 28 U.S.C. § 455 provides that “any justice, judge or

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magistrate judge shall disqualify [herself] in any proceeding in which [her] impartiality might

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reasonably be questioned” or “[w]here [she] has a personal bias or prejudice concerning a party.”

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28 U.S.C. §§ 455(a). “The standard for judging the appearance of partiality requiring recusal

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under 28 U.S.C. § 455(a) is an objective one and involves ascertaining ‘whether a reasonable

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person with knowledge of all the facts would conclude that the judge’s impartiality might

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reasonably be questioned.’” United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008); Preston

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v. United States, 923 F.2d 731, 734 (9th Cir. 1991) (citations omitted). The “reasonable person”

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is not someone who is “hypersensitive or unduly suspicious,” but rather is a “well-informed,

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thoughtful observer.” Holland, at 913. “The standard “‘must not be so broadly construed that it

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becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated

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suggestion of personal bias or prejudice.’” Holland, 519 F.3d at 913.

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The court’s analysis is “fact-driven” requiring “an independent examination of the unique

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facts and circumstances of the particular claim at issue.” Id. at 914 (citation omitted). Thus,

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“except in the “rarest of circumstances,” recusal under § 455(a) is limited to “extra judicial

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source” factors requiring the reason for recusal to be “something other than rulings, opinions

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formed or statements made by the judge during the course of trial. Id. (citing Liteky v. United
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Case 1:18-cv-00277-ADA-HBK Document 120 Filed 01/04/23 Page 4 of 4
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States, 510 U.S. 540, 554–56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)). Here, Plaintiff

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complains only that the judge has “sided with defense” but otherwise the Objection is devoid of

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any factual specificity. This sole complaint is woefully deficient to warrant judicial recusal.

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Accordingly, it is ORDERED:

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Plaintiff’s Motion for Appointment of Counsel (Doc. No. 118) is DENIED.

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Dated:

January 4, 2023
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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