Barraillier v. Muniz et al
Filing
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ORDER DENYING 21 MOTION FOR THE APPOINTMENT OF COUNSEL by Judge William H. Orrick. (jmdS, COURT STAFF) (Filed on 10/13/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
Case 3:19-cv-08330-WHO Document 23 Filed 10/13/20 Page 1 of 4
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MARIO F. BARRAILLIER,
Plaintiff,
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United States District Court
Northern District of California
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Case No. 19-cv-08330-WHO (PR)
v.
J. ALVAREZ, et al.,
Defendants.
ORDER DENYING MOTION FOR
THE APPOINTMENT OF
COUNSEL
Dkt. No. 21
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INTRODUCTION
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Plaintiff Barraillier moves for the appointment of counsel. (Dkt. No. 21.) His
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grounds are that (i) he would be better represented by having counsel; (ii) he lacks the
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money to hire counsel; and (iii) his age and physical and mental infirmities make it
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difficult for him to prosecute this federal habeas action. The first two grounds, while no
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doubt true, are insufficient under our precedents. The third is also insufficient; despite
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Barraillier’s quite serious history of mental and physical infirmities, he is able to represent
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himself without counsel at this stage in the proceedings. All his filings are clear, well-
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reasoned, and appear in highly readable handwriting. Furthermore, the issues in his
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complaint are not complex, and he has ably articulated them. The motion is DENIED.
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BACKGROUND
Barraillier contends that his physical and mental infirmities weigh in favor of the
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appointment of counsel. In support, he attached to his motion a neurological consultation
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report dated July 15, 2009 from the Kern County Neurological Medical Group, Inc. (Mot.
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for Counsel, Neurological Consultation Report, Dkt. No. 21 at 16.) The salient fact is that
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in 1992 Barraillier sustained a head injury that resulted in his being in a coma for three
Case 3:19-cv-08330-WHO Document 23 Filed 10/13/20 Page 2 of 4
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days. (Id.) He had surgery, soon after which he had a seizure. (Id.) According to the
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report, his last seizure was nine months before the date of the report, and that (therefore) he
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had not had a seizure in 2009 thus far. (Id.) He was taking Dilantin and gabapentin. (Id.)
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He claimed to have had a stroke six months earlier and was experiencing left-sided
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weakness. (Id.)
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According to the report, his seizures were diagnosed as “post traumatic migraine
headaches and post traumatic seizures.” (Id.) The scanning indicated “a history of
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bifrontal and contusions and encephalomalacia.” (Id.) An MRI from January 2006
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“revealed small areas of encephalomalacia and gliosis in the bilateral anterior frontal lobe
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and left anterior temporal lobe consistent with posttraumatic brain injury.” (Id.) His brain
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United States District Court
Northern District of California
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scan was “unremarkable,” however. (Id.) He presented as “pleasant and easily
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examined,” and “mentally alert” and “appropriate.” (Id.) This neurological report is
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eleven years old. In his motion, Barraillier contends that he is an epileptic. (Id. at 3.)
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Set against this serious history of mental and physical infirmities are the quite clear
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filings presented by Barraillier. Without exception, his contentions are clearly and orderly
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presented, both in articulating his thoughts and arguments and in presenting them to the
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Court in his quite clear handwriting. This includes his 17-page complaint and the present
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18-page motion.
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Also set against this history is that the issues presented in the complaint are not
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complex. Barraillier alleges that he was attacked by guards and that other staff failed to
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intervene. There is nothing novel or complex about these facts or the legal issues they
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present.
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STANDARD OF REVIEW
The decision to request counsel to represent an indigent litigant under 28 U.S.C.
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§ 1915 is within “the sound discretion of the trial court and is granted only in exceptional
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circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of
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“exceptional circumstances” requires an evaluation of the likelihood of the plaintiff’s
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success on the merits and an evaluation of the plaintiff’s ability to articulate his claims pro
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Case 3:19-cv-08330-WHO Document 23 Filed 10/13/20 Page 3 of 4
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se in light of the complexity of the legal issues involved. See Agyeman v. Corrections
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Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Neither the need for discovery,
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nor the fact that the pro se litigant would be better served with the assistance of counsel,
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necessarily qualify the issues involved as complex. See Rand v. Rowland, 113 F.3d 1520,
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1525 (9th Cir. 1997).
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In the Ninth Circuit, roughly one-third of new civil litigants in district court are not
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represented by counsel. United States Courts for the Ninth Circuit, 2017 Annual Report 40
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(2018), available at https://www.ca9.uscourts.gov/judicial_council/ publications/
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AnnualReport2017.pdf. Most, but by no means all, of these litigants are incarcerated.
There is no doubt that not having a lawyer puts a party at a disadvantage in our adversarial
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United States District Court
Northern District of California
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system of justice, and the high percentage of civil litigants who cannot afford one threatens
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our ability to dispense equal justice to rich and poor alike, as the judicial oath demands.
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That said, I am compelled to follow controlling precedent and determine if “exceptional
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circumstances” exist to appoint counsel in the cases before me.
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DISCUSSION
At least at this stage of the proceedings, Barraillier has not shown that exceptional
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circumstances exist. His indigency and the possibility that he would be better served by
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having counsel are not exceptional circumstances. Rand, 113 F.3d at 1525.
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Also, despite his physical and mental infirmities, Barraillier is able to represent
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himself in this action without counsel. His filings are clearly articulated and legibly
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written. This is evidenced by the fact that his 17-page complaint was served as originally
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filed and no amendments are required. Likewise, his present motion is roughly 18 pages
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of clear, well-reasoned contentions, including case citations and supporting documentation.
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CONCLUSION
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Barraillier’s motion for the appointment of counsel is DENIED. (Dkt. No. 21.)
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When I review a motion for summary judgment in this case and can evaluate Barraillier’s
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likelihood of success on the merits, I will reconsider the necessity of appointing counsel.
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This order terminates Dkt. No. 21.
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IT IS SO ORDERED.
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Dated: October 13, 2020
_________________________
WILLIAM H. ORRICK
United States District Judge
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United States District Court
Northern District of California
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