George v. Uribe et al
Filing
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ORDER denying 33 Motion to Appoint Counsel. Signed by Magistrate Judge Ruben B. Brooks on 1/17/12. (All non-registered users served via U.S. Mail Service)(lmt)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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RICHARD EARL GEORGE,
Plaintiff,
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v.
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D. URIBE, et al.,
Defendants.
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Civil No. 11cv70 JLS(RBB)
ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL [ECF NO. 33]
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Plaintiff Richard Earl George, a state prisoner currently
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incarcerated at Salinas Valley State Prison, and proceeding pro se
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and in forma pauperis, filed a civil rights complaint on January
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12, 2011, pursuant to 42 U.S.C. § 1983 [ECF No. 1].
On March 21,
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2011, United States District Judge Janis L. Sammartino dismissed
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Plaintiff’s Complaint for failure to state a claim upon which
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relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and §
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1915A(b), and gave him leave to file an amended complaint [ECF No.
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3].
Plaintiff timely filed a First Amended Complaint against the
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Warden and various correctional officers at Centinela State Prison
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(“Centinela”), alleging his Constitutional rights were violated
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11cv70 JLS(RBB)
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when he was attacked by another inmate on January 8, 2010, while
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housed at Centinela.
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5, 2011, Defendants filed a Motion to Dismiss the First Amended
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Complaint [ECF No. 23].
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filed his Response in Opposition to Defendants’ Motion to Dismiss
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[ECF No. 26].
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in Opposition to Defendants’ Motion to Dismiss [ECF No. 29].
(First Am. Compl. 3,1 ECF No. 5.)
On August
On September 1, 2011, Plaintiff George
Shortly thereafter, he filed a Supplemental Response
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While Defendants’ Motion to Dismiss was pending, Plaintiff’s
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Motion for Appointment of Counsel in this case was filed nunc pro
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tunc to December 30, 2011 [ECF No. 33].
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the allegations raised in the First Amended Complaint when deciding
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whether to grant Plaintiff’s request for counsel.
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Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“As a general rule,
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when a plaintiff files an amended complaint, ‘[t]he amended
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complaint supercedes the original, the latter being treated
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thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55,
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57 (9th Cir. 1967)).
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of counsel, Plaintiff asserts the following: (1) He is unable to
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afford an attorney; (2) his imprisonment limits his ability to
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litigate; (3) he has limited education and no training in law; and
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(4) the issues in this case are complex and beyond his
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understanding.
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The Court will consider
Rhodes v.
In support of his request for the appointment
(Mot. Appointment Counsel 2-5, ECF No. 33.)
“The court may request an attorney to represent any person
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unable to afford counsel.”
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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.”
28 U.S.C.A. § 1915(e)(1) (West 2006).
United States v.
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Because the First Amended Complaint is not consecutively
paginated, the Court will cite to the document using the page
numbers assigned by the Court’s electronic case filing system.
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11cv70 JLS(RBB)
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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.”
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490 U.S. 296, 310 (1989) (discussing § 1915(d)); see also United
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States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir.
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Rand v. Rowland, 113 F.3d 1520, 1525 (9th
Federal courts do not have the authority “to make coercive
Mallard v. United States Dist. Court,
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.’”
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390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328,
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1331 (9th Cir. 1986)).
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and both must be viewed together before reaching a decision.’”
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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting
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Wilborn, 789 F.2d at 1331).
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A.
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See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101,
“A finding of the exceptional circumstances
Agyeman,
“‘Neither of these factors is dispositive
Likelihood of Plaintiff’s Success on the Merits
To receive court-appointed counsel, Plaintiff must present a
nonfrivolous claim that is likely to succeed on the merits.
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Wilborn, 789 F.2d at 1331.
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alleges that his Eighth and Fourteenth Amendment rights were
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violated when prison officials failed to protect him from an attack
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by another inmate.
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Plaintiff is currently incarcerated at Salinas Valley State Prison,
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the allegations of the First Amended Complaint arise from events
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that occurred while George was incarcerated at Centinela State
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Prison.
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In his First Amended Complaint, George
(First Am. Compl. 8, ECF No. 5.)
Although
(Id. at 3.)
Plaintiff alleges that on January 8, 2010, prison staff at
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Centinela conducted security training exercises and that Defendant
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Captain Hernandez was in charge of the exercise on facility C yard.
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(Id.)
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to keep inmates from entering the security area unless the inmate
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had a written entry pass and identification.
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Plaintiff, Defendants Valasquez and Alvarado allowed two inmates to
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breach security and enter the yard in order to assault Plaintiff.
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(Id. at 4.)
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the assault from the side wall of the facility four building.
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(Id.) George further claims Sergeant Valasquez was the head yard
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officer in charge of all yard staff. (Id. at 6.)
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George claims that Defendant Hernandez ordered prison staff
(Id.)
According to
Plaintiff alleges that Valasquez and Alvarado watched
Plaintiff alleges that after Defendant Farias observed four
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inmates, including Plaintiff, fighting on yard two, Farias
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allegedly radioed for a “code response” and activated the yard
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alarm.
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the public address system; however, Plaintiff did not comply.
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(Id.)
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struck in the torso area with a fist. (Id. at 5.)
(Id. at 4.)
Farias ordered all inmates to the ground over
George claims he received a blow to back of the head and was
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Plaintiff contends that Defendant Carvajal responded to the
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radio call of Defendant Farias and observed Plaintiff and another
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inmate preparing to fight each other.
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ordered both inmates to get down on the ground.
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allegedly hesitated at first, but eventually complied.
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Defendant Carvajal then cuffed Plaintiff and escorted him to a
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holding cell before placing George in administrative segregation
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housing.
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Hernandez, and other staff members met to write a fraudulent report
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regarding the inmates’ participation in a riot in order to cover up
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staff’s negligence and security breach.
(Id.)
(Id. at 5.)
Carvajal
(Id.)
George
(Id.)
Plaintiff alleges that Defendants Lopez,
(Id.)
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George maintains that he asked to see a nurse for his
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injuries, and the nurse discovered a golf-ball-sized bump behind
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his left ear.
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headache and blurry vision from the incident; he was prescribed
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pain relief medication and eye drops, and was scheduled to see an
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optometrist.
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post-traumatic stress disorder syndrome as a result of the assault.
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(Id.)
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(Id. at 6.)
(Id.)
Plaintiff alleges that he experienced a
Plaintiff contends that he was diagnosed with
In his Amended Complaint, George maintains that Defendant
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Valenzuela was the senior hearing officer conducting Plaintiff’s
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115 rules violation hearing, and Valenzuela recommended a four
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month SHU (segregated housing unit) term.
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Defendant Valenzuela violated department rules and regulations by
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interfering with Plaintiff’s assigned hearing incident
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investigator. (Id.)
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his assigned investigator.
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have shared Plaintiff’s witness questionnaire with Defendant
(Id.)
Plaintiff claims
Plaintiff states that Defendant Gutierrez was
(Id. at 7.)
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Gutierrez is alleged to
11cv70 JLS(RBB)
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Valenzuela before the hearing so that Valenzuela could instruct
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Gutierrez not to ask certain questions that may incriminate staff.
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(Id. at 7.)
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chief disciplinary officer, recommended the amount of time for
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Plaintiff’s disciplinary action, and ordered Plaintiff to be
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transferred from Centinela in an alleged effort to cover up staff
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negligence.
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off on the documents and is responsible for staff’s actions.
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Plaintiff alleges that Defendant Calderon was the
(Id.) George claims that Defendant Warden Uribe signed
(Id.)
"[T]he treatment a prisoner receives and the conditions under
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which he is confined are subject to scrutiny under the Eighth
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Amendment."
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Eighth Amendment "requires that inmates be furnished with the basic
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human needs, one of which is 'reasonable safety.'"
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(quoting DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S.
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189, 200 (1989)).
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protected from violence while in custody.
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U.S. 825, 833 (1994); Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.
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2000); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir.
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1989).
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inmates from physical abuse."
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(9th Cir. 1982).
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Constitution imposes a duty to assume some responsibility for his
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safety and well-being.
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Helling v. McKinney, 509 U.S. 25, 31 (1993).
The
Id. at 33
Therefore, a plaintiff has a right to be
Farmer v. Brennan, 511
"Prison officials must take reasonable steps to protect
Hoptowit v. Ray, 682 F.2d 1237, 1250
When the state takes a person into custody, the
DeShaney, 489 U.S. at 1005.
To establish an Eighth Amendment violation, a plaintiff must
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show that the defendant acted with deliberate indifference to a
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substantial risk of serious harm to the prisoner's safety.
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511 U.S. at 834; see Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th
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Cir. 1995); Madrid v. Gomez, 889 F. Supp. 1146, 1267-68 (N.D. Cal.
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Farmer,
11cv70 JLS(RBB)
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1995).
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are met; one is objective, and the other is subjective.
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511 U.S. at 834; see Foster v. Runnels, 554 F.3d 807, 812 (9th Cir.
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2009).
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"sufficiently serious."
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Seiter, 501 U.S. 294, 298 (1991)).
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must subjectively "know of and disregard an excessive risk to
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inmate health or safety."
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The prison official is only liable when two requirements
Farmer,
First, the purported violation must be objectively
Farmer, 511 U.S. at 834 (citing Wilson v.
Second, the prison official
Id. at 837.
The Equal Protection Clause of the Fourteenth Amendment
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ensures that similarly situated persons are treated alike.
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Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).
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This right extends to prisoners.
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556 (1974).
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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).
City of
Wolf v. McDonnell, 418 U.S. 539,
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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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
Barren v.
Alternatively, if the state action does not
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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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Engquist v. Or. Dep't of Agric., 553
It is too early for the Court to determine George’s likelihood
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of success on the merits.
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Amended Complaint, and the arguments made in Defendants’ pending
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Motion to Dismiss [ECF No. 23], Plaintiff may not have sufficiently
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pleaded that prison staff
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an excessive risk to Plaintiff’s health or safety to support a
Based on the allegations in the First
subjectively knew of, and disregarded,
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claim under the Eight Amendment.
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Likewise, George has not alleged a membership in a protected class
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to sufficiently plead a Fourteenth Amendment violation.
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152 F.3d at 1194-95.
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Court cannot conclude that the Plaintiff is likely to succeed on
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the merits of his claims.
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552 (S.D. Cal. 1993).
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B.
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Farmer, 511 U.S. at 834.
Barren,
Without additional factual information, the
See Bailey v. Lawford, 835 F. Supp. 550,
Plaintiff’s Ability to Proceed Without Counsel
To be entitled to appointed counsel, George must also show he
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is unable to effectively litigate the case pro se in light of the
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complexity of the issues involved.
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Courts have required that “indigent plaintiffs make a reasonably
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diligent effort to secure counsel as a prerequisite to the court’s
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appointing counsel for them.”
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Plaintiff has not shown he made any efforts to secure counsel.
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(See Mot. Appointment Counsel 2-3, ECF No. 33.)
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See Wilborn, 789 F.2d at 1331.
Bailey, 835 F. Supp. at 552.
Here,
George initially claims he lacks any meaningful sources of
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income to afford legal counsel.
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not sufficient because indigence alone does not entitle a plaintiff
(Id. at 2, 5.)
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This argument is
11cv70 JLS(RBB)
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to appointed counsel.
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imprisonment will limit his ability to litigate, because prison
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lock-downs “impair his access to the law library.”
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Although his access to legal materials may be limited, George has
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not demonstrated that he is being denied “reasonable” access.
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Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 858 (9th Cir.
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1985).
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access to a law library.
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regulate the time, manner, and place in which library facilities
Further, Plaintiff asserts that his
(Id. at 2.)
See
“[T]he Constitution does not guarantee a prisoner unlimited
Prison officials of necessity must
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are used.”
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does not have reasonable access to a law library or other means of
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conducting legal research, or that he is subjected to burdens
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beyond those ordinarily experienced by pro se plaintiffs.
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Id. (citation omitted).
George has not shown that he
Plaintiff also contends that he has limited education, and the
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issues involved in this matter are “very complex.”
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Appointment Counsel 2-3, ECF No. 33.)
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Plaintiff’s Amended Complaint is adequate in form.
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George was able to file a motion requesting to proceed in forma
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pauperis [ECF No. 2], a prior Motion for Appointment of Counsel
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[ECF No. 4], an Amended Complaint [ECF No. 5], and a Motion for
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Entry of Default Judgment [ECF No. 31].
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his Response in Opposition to Defendants’ Motion to Dismiss [ECF
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No. 26], and a Supplemental Response in Opposition to the Motion to
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Dismiss [ECF No. 29], suggesting an ability to navigate the legal
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process.
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(finding the district court did not abuse its discretion in denying
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plaintiff counsel, in part because plaintiff adequately filed a
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complaint and other pretrial materials).
(Mot.
The Court notes that
Additionally,
He was also able to file
See Plummer v. Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996)
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“[A]ny pro se litigant certainly would be better served with
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the assistance of counsel.”
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Wilborn, 789 F.2d at 1331 (“[A] pro se litigant will seldom be in a
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position to investigate easily the facts necessary to support the
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case.”).
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show “that because of the complexity of the claims he [is] unable
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to articulate his positions.”
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not identified anything in the record that makes this case
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“exceptional” or the issues in it particularly complex.
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Rand, 113 F.3d at 1525; see also
Plaintiff is only entitled to appointed counsel if he can
Rand, 113 F.3d at 1525.
George has
Agyeman,
390 F.3d at 1103.
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Because Plaintiff has failed to demonstrate either a
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likelihood of success on the merits or an inability to represent
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himself beyond the ordinary burdens encountered by pro se
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prisoners, Plaintiff’s Motion for Appointment of Counsel is DENIED
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without prejudice.
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Dated: January 17, 2012
______________________________
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Ruben B. Brooks
United States Magistrate Judge
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cc:
Judge Sammartino
All Parties of Record
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