McKenzie v. Casillas et al

Filing 36

ORDER Denying 35 Motion to Appoint Counsel. Signed by Magistrate Judge Ruben B. Brooks on 4/16/2013. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Civil No. 12cv1602 BEN (RBB)

GUSTAVO MCKENZIE,

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Plaintiff,
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v.
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R. CASILLAS, J. NUTT, M.D.
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CARPIO, J. OLIVO, HECTOR LOPEZ, )
D. RODERICK, E. URIBE, E.
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CASTILLO, R. LIZARRAGA, B.
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HATFIELD, J. SALCEDA, DOE 1, P. )
ALANIS,
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Defendants.
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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
PURSUANT TO 28 U.S.C. 1915(d)
& (e)(1) [ECF NO. 35]

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Plaintiff Gustavo McKenzie, a state prisoner proceeding pro se

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and in forma pauperis, initiated this civil rights action pursuant

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to 42 U.S.C. 1983, alleging that Defendants violated the First

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Amendment when they retaliated against him for filing internal

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grievances and a civil action against prison employees.

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17, ECF No. 1; Order Granting Pl.'s Mot. Proceed In Forma Pauperis

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1, ECF No. 4.)1

(Compl. 7-

Before the Court is McKenzie's Motion for

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Because the Complaint is not consecutively paginated, the
Court will cite to the page numbers assigned by the electronic case
filing system.
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12cv1602 BEN (RBB)

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Appointment of Counsel, filed nunc pro tunc to January 2, 2013 [ECF

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No. 35].

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I.

Procedural Background

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This lawsuit relates to a civil rights action McKenzie filed

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on March 25, 2010, against several prison employees in California

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Superior Court ("underlying action").

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removed to the United States District Court for the Southern

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District of California on December 8, 2010.

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No. 10cv1490–LAB (MDD), 2011 U.S. Dist. LEXIS 118373, at *1-2 (S.D.

That case was subsequently

See McKenzie v. Ellis,

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Cal. July 18, 2011) (report and recommendation regarding

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defendants' motion to dismiss complaint).

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action, McKenzie claimed that Defendants violated his First and

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Fourteenth Amendment rights when they refused to accommodate his

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religious dietary needs.

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were dismissed without leave to amend, and his state claims were

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remanded to the California Superior Court on September 13, 2012.

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McKenzie v. Ellis, No. 10cv1490-LAB [MDD] 2012 U.S. Dist. LEXIS

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130973, at *1 (S.D. Cal. Sept. 13, 2012) (order dismissing federal

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claims and remanding case to state court).

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Id. at *1-5.

In the underlying

Plaintiff's federal claims

McKenzie filed his Complaint in this matter on June 27, 2012,

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naming thirteen Defendants [ECF No. 1].

Plaintiff alleges that

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Defendants retaliated against him for filing internal grievances

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and the underlying lawsuit.

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maintains that Defendants have engaged in various retaliatory

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actions, including breaking Plaintiff's typewriter; writing a false

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rule violation report; "maliciously" imposing various sanctions as

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punishment; refusing to accommodate Plaintiff's religious dietary

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requirements even though he had a "Religious Diet Card"; removing

(Compl. 7-17, ECF No. 1.)

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Plaintiff

12cv1602 BEN (RBB)

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McKenzie from the "Religious Diet List"; threatening to fight

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Plaintiff; denying McKenzie "allowable books, hygiene items[,] and

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some collectible postcards[]" that were provided to everyone else

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housed in Plaintiff's unit; and arbitrarily rejecting McKenzie's

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inmate grievances.

(Id. at 8-17.)

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On October 2, 2012, Defendants filed a Motion to Revoke

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Plaintiff's IFP Status and Dismiss [ECF No. 20] ("Motion to Revoke

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and Dismiss").

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within the meaning of 28 U.S.C. § 1915(g) and that he is not in

Defendants maintain that McKenzie has three strikes

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imminent danger of serious physical injury.

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Dismiss 2, ECF No. 20.)

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that Defendants' Motion to Revoke and Dismiss was untimely pursuant

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to Federal Rule of Civil Procedure 12(a)(1)(A)(i) and that he does

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not have three strikes within the meaning of 28 U.S.C. § 1915(g).

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(Opp'n Defs.' Mot. Revoke & Dismiss 5-11, ECF No. 22.)2

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filed their Reply on November 2, 2012, asserting that their motion

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was timely filed pursuant to Federal Rule of Civil Procedure

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12(a)(1)(A)(ii) and that McKenzie failed to show that he does not

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have three strikes within the meaning of 28 U.S.C. § 1915(g).

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(Defs.' Reply Pl.'s Opp'n 1-2, ECF No. 23.)

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Revoke and Dismiss is currently pending before the Honorable Roger

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T. Benitez.

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(Defs.' Mot. Revoke &

Plaintiff filed an Opposition, claiming

Defendants

Defendants' Motion to

Plaintiff submitted a Motion for Entry of Default against

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Defendant J. Nutt, which was filed nunc pro tunc to November 30,

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2012 [ECF No. 29].

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stating that he timely responded in this case before McKenzie moved

Nutt filed an opposition on December 11, 2012,

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The Court cites to the page numbers assigned by the
electronic case filing system.
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12cv1602 BEN (RBB)

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for default.

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Plaintiff filed a reply on December 26, 2012 [ECF No. 32].

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Honorable Roger T. Benitez denied McKenzie's Motion for Entry of

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Default on January 3, 2013 [ECF No. 33].

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(Def.'s Opp'n Mot. Entry Default 2, ECF No. 30.)
The

Plaintiff's Motion for Appointment of Counsel ("Motion") was

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filed nunc pro tunc to January 2, 2013 [ECF No. 35].

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asserts that appointed counsel is appropriate for several reasons:

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(1) Defendants' ongoing retaliation is resulting in "periodic

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denials of access to the facility's law library"; (2) his medical

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condition (open-angle glaucoma) has resulted in the loss of vision

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in his right eye, which has "become a major impediment in the

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preparation of documents"; (3) he is a "layman at law"; and (4) he

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has been unable to obtain independent counsel.

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Counsel 5, ECF No. 35.)

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II.

McKenzie

(Mot. Appointment

Discussion

Plaintiff requests the appointment of counsel to assist him in

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prosecuting this civil action.

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right to appointment of counsel in a civil case unless an indigent

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litigant may lose his physical liberty if he loses the litigation.

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Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25 (1981).

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Nonetheless, district courts maintain discretion to appoint counsel

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for indigent persons.

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discretion may be exercised only under "exceptional circumstances."

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The Constitution does not provide a

28 U.S.C.A. § 1915(e)(1) (West 2012).

This

Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
A finding of exceptional circumstances requires an
evaluation of both "the likelihood of success on the
merits [and] the ability of the petitioner to articulate
his claims pro se in light of the complexity of the legal
issues involved." Neither of these factors is
dispositive and both must be viewed together before
reaching a decision . . . .

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12cv1602 BEN (RBB)

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)

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(alteration in original) (quoting Weygandt v. Look, 718 F.2d 952,

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954 (9th Cir. 1983)).

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proceed pro se, courts generally require, as a threshold matter,

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the plaintiff to show that (1) he is indigent, and (2) he "has made

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a reasonably diligent effort to secure counsel."

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Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993); see also Cota v.

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Scribner, No. 09cv2507-AJB (BLM), 2012 U.S. Dist. LEXIS 20460, at

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*2-3 (S.D. Cal. Feb. 16, 2012).

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When examining a plaintiff's ability to

Bailey v.

McKenzie alleges that he has "writ[en] to numerous pro bono

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attorneys, and legal clinics, with no response."

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Counsel 5, ECF No. 35.)

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reasonably diligent effort to obtain counsel.

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Dist. LEXIS 20460, at *3 (holding that the plaintiff had shown a

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reasonably diligent effort to secure counsel by "stat[ing] that he

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attempted to secure counsel on his own[]" (emphasis added) (citing

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Bailey, 835 F. Supp. at 552)).

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nonetheless inappropriate at this time because McKenzie's Complaint

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may not withstand Defendants' pending Motion to Dismiss [ECF No.

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20].

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LEXIS 68786, at *10 (E.D. Cal. July 21, 2009) (denying motion to

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appoint counsel due to insufficient information to assess

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likelihood of success on merits); see also Bailey, 835 F. Supp. at

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552.

(Mot. Appointment

Thus, Plaintiff appears to have made a
See Cota, 2012 U.S.

Appointment of counsel is

See Harris v. Duc, No. S CIV 06-2138 DOC, 2009 U.S. Dist.

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Defendants filed a motion to revoke Plaintiff's in forma

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pauperis status under 28 U.S.C. § 1915(g), alleging that McKenzie

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has accumulated three strikes within the meaning of the statute,

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and he is not in imminent danger of serious bodily injury.

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(Defs.'

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Mot. Revoke & Dismiss 2, ECF No. 20.)

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minute order indicating that the motion would be submitted on the

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papers; the hearing date was vacated; and the court intended to

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issue a written order [ECF No. 24].

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Judge Benitez issued a

Section 1915(g) prohibits a prisoner from proceeding in forma

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pauperis if, while incarcerated, he has brought at least three

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prior lawsuits "in a court of the United States that [were]

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dismissed on the grounds that [they were] frivolous, malicious, or

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fail[ed] to state a claim upon which relief may be granted . . . ."

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28 U.S.C.A. § 1915(g) (West 2006).

A defendant who challenges a

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plaintiff's in forma pauperis status bears the initial burden of

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providing the court with documentation of prior dismissals that

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count as strikes under § 1915(g).

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1120 (9th Cir. 2005).

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evidence to make a prima facie case for revocation of a plaintiff's

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in forma pauperis status, the burden shifts to the plaintiff, who

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"bears the ultimate burden of persuading the court that § 1915(g)

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does not preclude [in forma pauperis] status."

Andrews v. King, 398 F.3d 1113,

After a defendant has produced sufficient

Id.

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"[O]nce a prisoner has accumulated three strikes, he is

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prohibited by § 1915(g) from pursuing any other action [in forma

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pauperis] in federal court unless he is under 'imminent danger of

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serious physical injury.'"

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2009 U.S. Dist. LEXIS 120520, at *3 (S.D. Cal. Dec. 28, 2009)

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(quoting 28 U.S.C. § 1915(g)).

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exception based on the alleged conditions at the time the complaint

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was filed."

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2007); see also id. at 1056-57 (holding that plaintiff satisfied

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the imminent danger exception in § 1915(g) because he alleged that

McNeil v. Eply, No. 09-2485 BEN (CAB),

"Prisoners qualify for the

Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir.

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the defendants' ongoing practice of housing plaintiff with

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contagious cell mates placed him at risk of contracting serious

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disease).

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plausible allegation that the prisoner faced imminent danger of

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serious physical injury at the time of filing."

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(internal quotation marks omitted).

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"[T]he exception applies if the complaint makes a

Id. at 1055

McKenzie does not make any plausible allegations that he faced

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imminent serious bodily injury on June 27, 2012, the date he filed

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his Complaint.

See id.

Although Plaintiff contends that Defendant

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Uribe threatened to fight McKenzie six months earlier, on January

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22, 2011, Plaitniff does not state that the threat is ongoing, nor

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does he maintain that he is in imminent danger of serious bodily

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injury.

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Dismiss 1-2, ECF No. 22); see also Tierney v. Atkins, No. 12-00308

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SOM/KSC, 2012 U.S. Dist. LEXIS 76982, at *6 (D. Haw. June 4, 2012).

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"'[A] prisoner's allegation that he faced danger in the past' does

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not satisfy § 1915(g)'s imminent danger exception[]."

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2012 U.S. Dist. LEXIS 76982, at *6 (quoting Abdul-Akbar v.

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McKelvie, 239 F.3d 307, 311 (3rd Cir. 2001)); see also Cervantes,

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493 F.3d at 1053 ("[T]he availability of the exception turns on the

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conditions a prisoner faced at the time the complaint was filed,

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not at some earlier or later time.").

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exception in § 1915(g) does not apply, and Plaintiff has three

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strikes under the statute, he will lose his ability to proceed

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without the prepayment of filing fees.

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Marshals, No. 10cv2246 H (CAB), 2010 U.S. Dist. LEXIS 127779, at *5

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(S.D. Cal. Nov. 30, 2010) (denying in forma pauperis status and

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dismissing for failure to pay filing fee).

(See Compl. 13, EFC No. 1; Opp'n Defs.' Mot. Revoke &

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Tierney,

Thus, if the imminent danger

See Griffin v. U.S.

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In support of their Motion to Revoke and Dismiss, Defendants

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have identified six of Plaintiff's previous cases that they contend

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count as five strikes under § 1915(g),3 along with supporting

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documents.

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3-5, ECF No. 20; id. Attach. #2 Defs.' Req. Judicial Notice, 1-60.)

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In his Opposition to Defendants' Motion to Revoke, McKenzie argues

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that (1) the motion is untimely; (2) he does not have three strikes

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under § 1915(g); and (3) the district court should not take

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judicial notice of Defendants' submissions.

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(Defs.' Mot. Revoke & Dismiss Attach. #1 Mem. P. & A.

(See Opp'n Defs.' Mot.

Revoke & Dismiss 4-11, ECF No. 22.)
Because Judge Benitez has not yet ruled on Defendants' Motion

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Revoke and Dismiss, it is too early for this Court to assess

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Plaintiff's likelihood of success on the merits.

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Defendants' pending motion is uncertain, and if granted, whether

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McKenzie will pay filing fees or post security for the filing fees

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is unknown.

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The resolution of

McKenzie has also failed to show that exceptional

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circumstances justify the appointment of counsel.

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insists that he lacks sufficient legal knowledge to proceed without

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the assistance of counsel.

Plaintiff

(Mot. Appointment Counsel 5, ECF No.

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Defendants maintain that Plaintiff's following prior cases
count as strikes under 28 U.S.C. § 1915(g): (1) McKenzie v.
Woodford, Case No. 1:04-cv-05903-AWI-WMW (E.D. Cal. Dec. 20, 2007)
(dismissed); (2) McKenzie v. Ellis, Case No. 3:10-cv-01490-LAB
(MDD) (S.D. Cal. Sept. 12, 2012) (federal claims dismissed and
remaining claims remanded to state court); (3) McKenzie v. Alameda,
Case No. CV-02-07551 (C.D. Cal. Dec. 10, 2002) (dismissed),
combined with Ninth Circuit dismissal in McKenzie v. Alameda, Case
No. 03-55221 (9th Cir. 2003); (4) McKenzie v. Woodford, Case No.
1:06-cv-00062-OWW-LJO (E.D. Cal. Dec. 23, 2006) (dismissed); and
(5) McKenzie v. Woodford, Case No. 1:06-cv-01490-AWI-SMS (E.D. Cal.
Feb. 15, 2007) (dismissed). (Defs.' Mot. Revoke & Dismiss Attach.
#1 Mem. P. & A. 3-5, ECF No. 20; see also id. Attach. #2 Req.
Judicial Notice 1-60.)
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35.)

This argument is unpersuasive, however, as McKenzie has

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demonstrated in his Complaint that he can adequately articulate the

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facts to support his causes of action.

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08cv1498 JM(RBB), 2010 U.S. Dist. LEXIS 51782, at *1-3 (S.D. Cal.

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May 26, 2010) (finding no exceptional circumstance due to factual

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complexity because plaintiff grasped "the legal issues involved"

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and was able to "adequately set[] forth a factual basis for his

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claims[]"); Shields v. Davis, No. C 07-0157 RMW (PR), 2008 U.S.

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Dist. LEXIS 90687, at *2-3 (N.D. Cal. Oct. 27, 2008) (denying

See Pough v. Almager, No.

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motion for appointment of counsel because the case was not

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particularly complex).

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possesses a sufficient understanding of his claims, the facts, and

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the law to continue to represent himself.

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McKenzie is an experienced litigant.

He

McKenzie further asserts that he has suffered "periodic

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denials of access to the facility's law library . . . ."

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Appointment Counsel 5, ECF No. 35.)

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does not guarantee a prisoner unlimited access to a law library.

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Prison officials of necessity must regulate the time, manner, and

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place in which library facilities are used."

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State Bd. of Corr., 776 F.2d 851, 858 (9th Cir. 1985) (citation

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omitted).

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Motion Revoke and Dismiss [ECF No. 22], as well as a Motion for

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Clerk's Entry of Default [ECF No. 29], and a Reply to Defendant

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Nutt's Opposition to Plaintiff's Motion for Clerk's Entry of

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Default [ECF No. 32].

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complete with citations to relevant authority.

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Appointment Counsel 7-8, ECF No. 35.)

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he does not have reasonable access to a law library or other means

(Mot.

"However, the Constitution

Lindquist v. Idaho

Plaintiff has timely filed an Opposition to Defendants'

McKenzie also filed the current Motion,

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(See Mot.

Plaintiff has not shown that

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of 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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Finally, McKenzie maintains that he suffers from open-angle

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glaucoma, for which he has undergone several surgeries, and from

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which he has lost the ability to see with his right eye.

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5.)

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impediment in the preparation of documents . . . ."

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McKenzie has not demonstrated how his physical infirmity impairs

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his ability to proceed pro se.

(Id. at

Plaintiff urges that his medical condition has "become a major
(Id.)

Based on the filings to date,

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Plaintiff appears to be able to adequately present his claims.

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Jones v. Frazesn, No. 2:07-cv-02769 RCT, 2009 U.S. Dist. LEXIS

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49639, at *2-3 (E.D. Cal. June 1, 2009) (finding no exceptional

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circumstance when plaintiff claimed his pain medication impaired

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his ability to read and write).

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See

McKenzie has not established that he is unable to proceed as a

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pro se litigant.

See Harris, 2009 U.S. Dist. LEXIS 68786, at *11-

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plaintiff was able to submit adequate documentation and motion

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work); see also Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103

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(9th Cir. 2004) (reviewing district court's denial of appointed

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counsel for abuse of discretion and explaining that a finding of

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exceptional circumstances justifying appointment of counsel

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requires an evaluation of plaintiff's ability to articulate his

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

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(holding district court did not abuse its discretion in denying

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plaintiff appointed counsel, in part because plaintiff adequately

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filed a complaint and other pretrial materials).

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situation is similar to that of other incarcerated pro se

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Plaintiff's

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plaintiffs.

McKenzie has demonstrated that he is able to

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adequately present his claims.

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68786, at *11-13; Agyeman, 390 F.3d at 1103; Plummer, 87 F.3d at

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1033.

See Harris, 2009 U.S. Dist. LEXIS

Plaintiff has not established exceptional circumstances that

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entitle him to appointed counsel.

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The Court denies McKenzie's request without prejudice as neither

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the interests of justice nor exceptional circumstances warrant

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appointment of counsel at this time.

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LaMere v. Risley, 827 F.2d

622, 626 (9th Cir. 1987); see also Terrell, 935 F.2d at 1017.

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III.

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See Agyeman, 390 F.3d at 1103.

CONCLUSION

For the above reasons, Plaintiff Gustavo McKenzie's Motion for
Appointment of Counsel is DENIED.

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IT IS SO ORDERED.

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DATED: April 16, 2013

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cc:

_____________________________
Ruben B. Brooks
United States Magistrate Judge

Judge Benitez
All parties of record

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