Garcia et al v. Smith et al

Filing 90

ORDER Denying Plaintiff's 82 Motion for Appointment of Counsel. Signed by Magistrate Judge Ruben B. Brooks on 6/27/12. (All non-registered users served via U.S. Mail Service)(cge)(jrd)

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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RUBEN DARIO GARCIA, JR.,
Plaintiff,

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v.

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SMITH, STEWART, CHANCE, MOORE,
CLUCK, VASQUEZ, WALL, BROWN,
STRICKLAND, ELIAS, SAVALA,
MERCHANT, SUGLICH, CONTRERAS,
MORRIS, CORTEZ, PEDERSEN,
HIRING AUTHORITY JOHN/JANE
DOE'S #1 TO 5,

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Defendants.

Civil No. 10cv1187 AJB(RBB)

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ORDER DENYING PLAINTIFF'S
MOTION FOR APPOINTMENT OF
COUNSEL [ECF NO. 82]

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Plaintiff Ruben Dario Garcia, Jr., a state prisoner proceeding

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pro se and in forma pauperis, filed a Complaint on June 1, 2010,

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pursuant to 42 U.S.C. § 1983 [ECF No. 1, 5].

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was dismissed for failure to state a claim [ECF No. 5].

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filed a First Amended Complaint on October 5, 2010, which was also

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dismissed sua sponte for failing to state a claim [ECF Nos. 9, 15].

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Garcia's complaint
Plaintiff

Garcia filed a Second Amended Complaint on December 7, 2010,

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alleging claims for cruel and unusual punishment, a due process

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violation, retaliation, conspiracy, a violation of equal

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10cv1187 AJB(RBB)

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protection, and interference with his access to the courts [ECF No.

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16].

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punishment, and access to courts causes of action were dismissed

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for failing to state a claim [ECF No. 17].

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Motion to Dismiss the Second Amended Complaint [ECF No. 50], which

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was granted in part and denied in part [ECF Nos. 64, 72].

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Defendants Brown, Chance, Cluck, Contreras, Cortez, Elias,

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Merchant, Moore, Savala, Smith, Stewart, Vasquez, and Wall

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subsequently filed an Answer [ECF No. 74].

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On February 3, 2011, the due process, cruel and unusual

The Defendants filed a

Garcia filed this Motion to Appoint Counsel nunc pro tunc to

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April 17, 2012 [ECF No. 82].

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counsel, the Plaintiff asserts that (1) the issues in this case are

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factually complex, (2) he is unable to investigate, (3) the matter

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involves conflicting testimony and credibility will be central to

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his case, (4) Garcia is unable to adequately present his claims,

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(5) his causes of action have merit, and (6) the issues are legally

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complex.

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2012, the Defendants' Memorandum of Points and Authorities in

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Opposition to Plaintiff's Motion for the Appointment of Counsel was

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filed [ECF No. 83].

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Plaintiff's stated reasons are "exceptional circumstances" that

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warrant appointed representation.

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ECF No. 83.)

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In support of his request for

(Mot. Appointment Counsel 5-12, ECF No. 82.)1

On May 2,

There, Defendants argue that none of

(Defs.'s Mem. P. & A. Opp'n 2-5,

"The court may request an attorney to represent any person
unable to afford counsel."

28 U.S.C.A. § 1915(e)(1) (West 2006).

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Because the Motion for Appointment of Counsel and
attachments are not consecutively paginated, the Court will cite to
them using the page numbers assigned by the electronic case filing
system.
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10cv1187 AJB(RBB)

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But "it is well-established that there is generally no

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constitutional right to counsel in civil cases."

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Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citations omitted).

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There is also no constitutional right to appointed counsel to

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pursue a § 1983 claim.

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Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th

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Cir. 1981)); accord Campbell v. Burt, 141 F.3d 927, 931 (9th Cir.

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1998).

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appointments of counsel."

United States v.

Rand v. Rowland, 113 F.3d 1520, 1525 (9th

Federal courts do not have the authority "to make coercive
Mallard v. U.S. Dist. Court, 490 U.S.

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296, 310 (1989) (discussing § 1915(d)); see also United States v.

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$292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).

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Nevertheless, district courts have discretion, pursuant to 28

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U.S.C. § 1915(e)(1), to request attorney representation for

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indigent civil litigants upon a showing of exceptional

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circumstances.

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1103 (9th Cir. 2004) (citing Franklin v. Murphy, 745 F.2d 1221,

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1236 (9th Cir. 1984)).

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of the plaintiff seeking assistance requires at least an evaluation

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of the likelihood of the plaintiff's success on the merits and an

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evaluation of the plaintiff's ability to articulate his claims 'in

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light of the complexity of the legal issues involved.'" Id.

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(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986)).

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viewed together before reaching a decision.'"

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935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn, 789 F.2d at

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1331).

See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101,

"A finding of the exceptional circumstances

"'Neither of these factors is dispositive and both must be
Terrell v. Brewer,

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A.

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Likelihood of Plaintiff's Success on the Merits
To receive court-appointed counsel, Garcia must present a

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nonfrivolous claim that is likely to succeed on the merits.

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Wilborn, 789 F.2d at 1331.

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Amended Complaint arise from events that occurred while he was

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incarcerated at Richard J. Donovan Correctional Facility in San

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Diego, California ("Donovan").

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The Plaintiff's surviving claims are for retaliation, conspiracy,

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and a violation of equal protection.

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The contentions in Garcia's Second

(Second Am. Compl. 1, ECF No. 16.)2

In count one, Garcia asserts that the Defendants retaliated

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and conspired to retaliate against him for submitting an inmate

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grievance.

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was based on a policy that required all inmates to walk single file

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with their shirts tucked in when they went to "chow hall."

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8.)

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in administrative segregation and, without looking at his central

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file, housing him with inmates that he was to be segregated from.

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(Id. at 11-13.)

(Second Am. Compl. 8-15, ECF No. 16.)

The grievance

(Id. at

Plaintiff urges that the Defendants retaliated by placing him

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Next, in count two, Garcia contends that the Defendants

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continued to retaliate and conspire against him when they refused

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his request under the "convenient cell move program" to be housed

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with his brother.

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four other sets of brothers' requests during this period, but

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denied his request.

(Id. at 17.)

The Defendants purportedly granted

(Id. at 18.)

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The Plaintiff maintains in count three that Defendants

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violated his equal protection rights by denying his request to be

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The Court will also cite to the Second Amended Complaint
using the page numbers assigned by the electronic case filing
system.
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10cv1187 AJB(RBB)

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reassigned to his job in the prison laundry division after he was

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released from administrative segregation.

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Defendants continued to deny his requests even though there were at

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least thirty openings in the laundry division since Garcia's

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release from administrative segregation.

(Id. at 19.)

The

(Id.)

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Finally, in count four, Plaintiff makes generalized

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allegations of a conspiracy to violate his civil rights,

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reiterating the constitutional violations he specified in counts

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one, two, and three.

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(Id. at 20.)

To state a conspiracy claim under § 1983, a plaintiff must

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show (1) an agreement between the defendants to deprive plaintiff

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of a constitutional right, (2) an overt act in furtherance of the

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conspiracy, and (3) a constitutional deprivation.

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No. 1:06-cv-225-WQH (PCL), 2011 U.S. Dist. LEXIS 20522, at *24

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(S.D. Cal. Mar. 2, 2011); see also Gilbrook v. City of Westminster,

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177 F.3d 839, 856-57 (9th Cir. 1999).

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secret agreements, "[a] defendant's knowledge of and participation

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in a conspiracy may be inferred from circumstantial evidence and

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from evidence of the defendant's actions."

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856-57.

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state a claim for relief.

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821 (9th Cir. 1989).

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plaintiff must allege facts with sufficient particularity to show

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an agreement or a meeting of the minds to violate the plaintiff's

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constitutional rights.

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n.3 (9th Cir. 2004); Margolis v. Ryan, 140 F.3d at 853; Woodrum v.

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Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989).

Garcia v. Grimm,

Because conspiracies are

Gilbrook, 177 F.3d at

Conclusory allegations of conspiracy are insufficient to
Burns v. County of King, 883 F.2d 819,

To plead a claim of conspiracy under § 1983,

Miller v. California, 355 F.3d 1172, 1177

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10cv1187 AJB(RBB)

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Government officials may not retaliate against prisoners who

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exercise their First Amendment rights.

Vignolo v. Miller, 120 F.3d

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1075, 1077-78 (9th Cir. 1997); Soranno's Gasco, Inc. v. Morgan, 874

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F.2d 1310, 1314 (9th Cir. 1989).

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right to meaningful access to the courts that includes the right to

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use established prison grievance procedures.

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CV 09-2179-PHX-RCB(DKD), 2010 U.S. Dist. LEXIS 67847, at *12 (D.

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Ariz. June 15, 2010) (citing Bradley v. Hall, 64 F.3d 1276, 1279

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(9th Cir. 1995)).

Inmates have a First Amendment

Trueman v. State, No.

Prisoner retaliation allegations are reviewed

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with particular care.

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1995).

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Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.

Finally, "whenever the government treats any person unequally

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because of his or her [membership in a protected class], that

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person has suffered an injury that falls squarely within the

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language and spirit of the Constitution's guarantee of equal

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protection."

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229-30 (1995).

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groups of people, but also individuals who would constitute a

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"class of one."

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(2000).

Adherent Constructors, Inc. v. Pena, 515 U.S. 200,
The equal protection guarantee safeguards not only

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

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A plaintiff can establish an equal protection cause of action

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by demonstrating that the defendant intentionally discriminated on

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the basis of plaintiff's membership in a protected class, such as

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race, religion, national origin, and poverty.

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Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998); Damiano v. Fla.

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Parole & Prob. Comm'n, 785 F.2d 929, 932-33 (11th Cir. 1986); see

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United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011)

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(stating that prisoners do not constitute a suspect class for equal

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Barren v.

10cv1187 AJB(RBB)

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protection purposes).

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implicate a fundamental right or a suspect classification, a

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plaintiff can make an equal protection claim by establishing that

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the defendant intentionally treated plaintiff differently from

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other similarly situated individuals without a rational basis for

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the difference in treatment.

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U.S. 591, 601 (2008); Olech, 528 U.S. at 564.

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Alternatively, if the state action does not

Engquist v. Or. Dep't of Agric., 553

In his Motion for Appointment of Counsel, Garcia argues that
he is entitled to an attorney because if he can prove his

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allegations, it would establish clear constitutional violations.

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(Mot. Appointment Counsel 12, ECF No. 82.)

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on its face, his case is meritorious.

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Defendants insist that Garcia has failed to present any arguments

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or evidence demonstrating that he will prevail on the merits.

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(Defs.' Mem. P. & A. Opp'n

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Plaintiff has merely demonstrated the sufficiency of the pleadings.

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(Id.)

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Plaintiff urges that,

(Id.)

3, ECF No. 83.)

In their Opposition,

They argue that

Although Garcia's retaliation, conspiracy, and equal

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protection claims survived Defendant's Motion to Dismiss, it is too

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early to determine the likelihood of success on the merits.

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Without more, it is not certain whether any of Plaintiff's causes

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of action will survive summary judgment.

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CIV 06-2138 DOC, 2009 U.S. Dist. LEXIS 68786, at *10 (E.D. Cal.

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July 21, 2009); see also Bailey v. Lawford, 835 F. Supp. 550, 552

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(S.D. Cal. 1993).

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for an appointed lawyer.

See Harris v. Duc, No. S

This factor does not support Garcia's request

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B.

Plaintiff's Ability to Proceed Without Counsel

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The Court must also consider whether Plaintiff is able to

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effectively litigate the case pro se in light of the complexity of

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the issues involved.

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See Wilborn, 789 F.2d at 1331.

Courts generally require, as a threshold matter, that

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Plaintiff show that (1) he is indigent, and (2) that he "has made a

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reasonably diligent effort to secure counsel."

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835 F. Supp. 550, 552 (S.D. Cal. 1993); see Cota v. Scribner, No.

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09cv2507-AJB (BLM), 2012 U.S. Dist. LEXIS 20460, at *2-3 (S.D. Cal.

Bailey v. Lawford,

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Feb. 16, 2012).

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(Mot. Appointment Counsel 1, ECF No. 82.)

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that he has failed to allege that he has made a diligent effort to

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secure counsel.

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does not show that he made any attempt to obtain a lawyer.

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alleging indigence is insufficient to entitle him to appointed

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counsel; he must also demonstrate that he made a good faith effort,

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but was unable, to obtain counsel prior to filing this Motion.

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Bailey, 835 F. Supp. at 552.

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Here, Garcia has claimed that he is indigent.
Yet, Defendants urge

(Defs.' Mem. P. & A. Opp'n 5, ECF No. 83.)

Garcia
Merely

See

Plaintiff insists that this case is factually complex because

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of the "sheer number of claims and defendants" involved.

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Appointment Counsel 6, ECF No. 82.)

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is more than capable of setting forth the factual basis for his

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claims.

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demonstrated, in his Second Amended Complaint, that he can

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adequately articulate the facts to support his causes of actions.

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See Pough v. Almager, No. 08cv1498 JM(RBB), 2010 U.S. Dist. LEXIS

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51782, at *1-3 (S.D. Cal. May 26, 2010) (finding no exceptional

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circumstance due to factual complexity because plaintiff was able

Defendants counter that Garcia

(Defs.' Mem. P. & A. Opp'n 3, ECF No. 83.)

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(Mot.

Plaintiff has

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to "adequately set forth a factual basis for his claims."); Shields

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v. Davis, No. C 07-0157 RMW (PR), 2008 U.S. Dist. LEXIS 90687, at

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*2-3 (N.D. Cal. Oct. 27, 2008) (denying motion for appointment of

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counsel because the case was not particularly complex).

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Garcia also proffers that he is unable to investigate the

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matter pro se.

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Specifically, he claims that he needs to obtain the identity of

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witnesses, the officers' reports and statements, and the officers'

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histories of abuse of authority.

(Mot. Appointment Counsel 6, ECF No. 82.)

(Id. (citing Tucker v. Dickey,

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613 F. Supp. 1124, 1133-34 (W.D. Wis. 1985)).)

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counter that every case requires discovery, and the Ninth Circuit

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has recognized that this is not a ground entitling an inmate to

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appointed counsel.

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Indeed, most lawsuits require the development of facts over the

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course of the litigation, and pro se plaintiff's are typically not

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in the position to easily investigate the facts.

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Vail, No. C11-6048 BHS/KLS, 2012 U.S. Dist. LEXIS 82003, at *2-4

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(W.D. Wash. June 13, 2012) (citing Wilborn, 789 F.2d at 1331).

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Although the investigation may be difficult, it does not rise to

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the level of an "exceptional circumstance" that would entitle

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Garcia to appointed counsel.

The Defendants

(Defs.' Mem. P. & A. Opp'n 4, ECF No. 83.)

See Davidson v.

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Plaintiff next asserts that he is entitled to appointed

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counsel because conflicting testimony in this case creates a

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credibility contest between the Defendants and himself.

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Appointment Counsel 6, ECF No. 82 (citing Gatson v. Coughlin, 679

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F. Supp. 270 (W.D.N.Y. 1988).)

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been able articulate his claims with a high level of verbal and

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legal proficiency.

(Mot.

Defendants urge that Garcia has

(Defs.' Mem. P. & A. Opp'n 3, ECF No. 83.)

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10cv1187 AJB(RBB)

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Nevertheless, conflicting testimony and factual disputes are not

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"exceptional circumstances" that entitle a plaintiff to appointed

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counsel.

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might have fared better with counsel during discovery and in

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securing expert testimony, this is not the test).

See Rand, 113 F.3d at 1525 (holding that while appellant

Plaintiff insists that is unable to adequately present his

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case because he has no legal education and was barely able to earn

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his "General Equivalent Degree (GED) Certificate" at the age of

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thirty-nine.

(Mot. Appointment Counsel 7, ECF No. 82.)

Further,

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he has no legal education and must therefore depend on the

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assistance of "jailhouse lawyers" who are limited in their

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abilities to help Garcia.

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notices of document discrepancies have been issued by the Court,

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which could have caused the dismissal of his case.

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Additionally, Plaintiff contends that he suffers from a mental

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illness and is taking "multiple powerful antipsychotic medications

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3 times a day" that obstruct his ability to concentrate, read, and

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understand.

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(Id.)

As a result, more than fifteen

(Id.)

(Id.)

Despite Garcia's claimed legal shortcomings, he has not shown

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that his burden will be greater than those that are typically

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experienced by incarcerated pro se plaintiffs.

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Plaintiff has demonstrated that he is capable of navigating the

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legal process.

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and Garcia presented a detailed recitation of the underlying facts

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against multiple defendants.

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16.)

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when he cited relevant legal authority to support his claims.

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id. at 20, 23.)

Additionally,

His Second Amended Complaint is adequate in form,

(See Second Am. Compl. 7-23, ECF No.

Additionally, Plaintiff evidenced his legal understanding
(See

Garcia further supported his claims with over 200

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pages of exhibits.

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Plaintiff also was able to file a Motion for Reconsideration [ECF

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No. 20], appeals to the Ninth Circuit [ECF Nos. 22, 49, 76], an

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Opposition to Defendants' Motion to Dismiss [ECF No. 58], a

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Surreply [ECF No. 63], and this Motion for Appointment of Counsel

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[ECF No. 82].

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(See id. citing Attachs. #1-5 Exs. 1-25.)

Plaintiff has not demonstrated that he is unable to proceed as

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a pro se litigant.

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*11-13 (finding no exceptional circumstances, in part, because

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plaintiff was able to submit adequate documentation and motion

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work); see also Agyeman, 390 F.3d at 1103 (reviewing for abuse of

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discretion and explaining that a finding of exceptional

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circumstances justifying appointment of counsel requires an

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evaluation of plaintiff's ability to articulate his claims);

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Plummer v. Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996) (finding the

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district court did not abuse its discretion in denying plaintiff

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counsel, in part because plaintiff adequately filed a complaint and

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other pretrial materials).

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his mental state impairs his ability to proceed pro se.

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based on the filings to date, Plaintiff appears to be able to

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adequately present his claims.

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02769 RCT, 2009 U.S. Dist. LEXIS 49639 at *2-3 (E.D. Cal. June 1,

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2009) (finding no exceptional circumstance when plaintiff claimed

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his pain medication impaired his ability to read and write).

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See Harris, 2009 U.S. Dist. LEXIS 68786, at

Garcia also has not demonstrated how
Again,

See Jones v. Frazesn, No. 2:07-cv-

Finally, Garcia contends that the issues in his case are

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legally and factually complex.

(Mot. Appointment Counsel 8-12, ECF

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No. 82.)

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without properly following the law.

He maintains that the court dismissed one of his claims

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(Id. at 8.)

In their

10cv1187 AJB(RBB)

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Opposition, Defendants assert that the issues are not complicated,

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and will likely hinge on whether their actions were justified.

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(Defs.' Mem. P. & A. Opp'n 4, ECF No. 83.)

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entitled to appointed counsel if he can show "that because of the

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complexity of the claims he [is] unable to articulate his

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positions."

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certainly would be better served with the assistance of counsel.").

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Garcia has not demonstrated that his case is "exceptional" or that

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the issues are particularly complex.

The Plaintiff is only

Rand, 113 F.3d at 1525 ("[A]ny pro se litigant

He also has been able to

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sufficiently articulate his positions to survive a motion to

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dismiss the claims.

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Therefore, Plaintiff has not sufficiently established

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exceptional circumstances that would entitle him to appointed

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counsel at this stage.

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Motion for Appointment of Counsel is DENIED.

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See Agyeman, 390 F.3d at 1103.

Garcia's

IT IS SO ORDERED.

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DATE: June 27, 2012

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cc:

____________________________
RUBEN B. BROOKS
United States Magistrate Judge

Judge Battaglia
All Parties of Record

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