Garcia v. Strayhorn et al

Filing 86

ORDER: (1) Denying 77 Motion to Appoint Counsel; (2) Denying 81 Motion to Extend Schedules; (3) Denying 83 Motion for Referral to Prisoner Settlement Program. Signed by Judge Roger T. Benitez on 6/1/2016. (All non-registered users served via U.S. Mail Service)(knb)

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FILED

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RUBEN GARCIA,

Case No.: 3: 13-cv-0807 BEN (KSC)
Plaintiff,

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v.

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D. STRAYHORN, et aI.,

Defendants.

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ORDER:
(1) DENYING MOTION TO
APPOINT COUNSEL;
(2) DENYING MOTION TO EXTEND
SCHEDULES; AND
(3) DENYING MOTION FOR
REFERRAL TO PRISONER
SETTLEMENT PROGRAM

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Before this Court are the following three motions filed by Plaintiff Ruben Garcia, a
state prisoner proceeding pro se and informa pauperis: (1) Motion to Appoint Counsel;

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and (3) Motion for Referral to Prisoner Settlement Program. (Docket Nos. 77, 81, 83.)

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Currently, this case is set for a final pretrial conference on June 13,2016, with trial on

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July 19,2016.

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For the reasons stated below, these Motions are DENIED.

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I.

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Plaintiff asks this Court, for a second time, to appoint counsel because (1) his

MOTION FOR APPOINTMENT OF COUNSEL

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claims are meritorious; (2) he is unable to afford counsel; and (3) the issues in his case

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are too complex for a person of his education and medical condition. Plaintiff previously

J3-cv-0807 BEN (KSC)

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filed a Motion for Appointment of Counsel on March 9,2015. (Docket No. 38.) The
magistrate judge denied that motion, and this Court denied Plaintiffs Motion for
Reconsideration. (Docket Nos. 45, 59.) The reasons for Plaintiffs current request have
not changed, and neither has this Court's decision.

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A. Legal Standard

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Courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1) (1996), to appoint
counsel for indigent civil litigants upon a showing of exceptional circumstances. "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 ofthe complexity of the legal issues involved." Terrell v. Brewer, 935 F.2d 1015,
1017 (9th Cir. 1991) (internal citations omitted). ''Neither of these factors is dispositive
and both must be viewed together before reaching a decision." Id. (internal citations
omitted).

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B. Analysis

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Exceptional circumstances do not exist in this case. Although one of Plaintiffs

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he might succeed on the merits-the record shows that Plaintiff has not struggled to
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articulate his claims. Rather, Plaintiff has consistently demonstrated the ability to
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prosecute his claims pro se. He has filed several pleadings and motions explaining his
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claims' legal and factual bases with sufficient clarity to allow them to be addressed on the
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merits. (See, e.g., Docket Nos. 6, 19, 67.) Indeed, Plaintiff defeated part of Defendants'
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motion for summary judgment. (Docket No. 72.) See Shepard v. Bass, 610 F. App'x
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625,625 (9th Cir. 2015) (affirming denial of pro se prisoner's request for counsel where
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plaintiff made numerous filings "that cogently articulated his legal arguments" and
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March 2016, this Court partially denied Defendants' motion for summary judgment
and set a trial schedule for the remaining claim. (Docket Nos. 72, 73.)
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"succeeded in defeating" defendant's summary judgment motion); Torbert v. Gore, No.

2 14-cv-2911, 2016 WL 1399230, at * 1 (S.D. Cal. Apr. 8,2016) ("Where apro se civil
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rights plaintiff shows he has a good grasp of basic litigation procedures and has been able

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Moreover, the issues in this case are not complex. Only one cause of action
remains to be tried, and it concerns simple factual circumstances regarding a claim of
retaliation. Plaintiff argues that conflicting testimony at trial will make the case too

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pro se, but such conflict occurs as a matter of course at any
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trial. "Conflicting testimony and factual disputes are not 'exceptional circumstances. '"
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Garcia v. Smith, No. 10-cv-1187, 2012 WL 2499003, at *5 (S.D. Cal. June 27,2012).
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While Plaintiff argues that his low education level, medical conditions and daily
intake of medication, and lack of legal training prejudice his ability to represent himself,

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experienced by incarcerated pro se plaintiffs." Id. at *5. As to his argument that he
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cannot afford counsel, "[m]erely alleging indigence is insufficient to entitle him to
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appointed counsel; he must also demonstrate that he made a good faith effort, but was
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unable, to obtain counsel." !d. at *4. Plaintiff has failed to make this showing. In sum,
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despite Plaintiffs claimed hardships, he has demonstrated through the course of
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proceedings that he can sufficiently articulate and litigate his case pro se.
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For these reasons, the Court finds that the exceptional circumstances required for

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II.

MOTION TO EXTEND SCHEDULES FOR PRETRIAL
CONFERENCE AND RELEVANT PRETRIAL DEADLINES

Plaintiff asks to extend the schedule set for pretrial conference and other pretrial
deadlines ordered by this Court on March 15,2016 (the "March order") (Docket No. 73)
or, in the alternative, to postpone the pretrial conference and pretrial deadlines until after

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the Court has decided his Motion for Appointment of Counsel. He claims that he "has
found himself unable to properly function or to diligently adhere to the court schedule"
due to his medical condition and placement in Enhanced Outpatient inmate housing.

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Motions in Limine, a Motion to Appoint Counsel, a Motion to Extend Schedules, a
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Motion for Referral to Prisoner Settlement Program, and his Memorandum of
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Contentions of Fact and Law. (Docket Nos. 76, 77, 79, 81, 83, 85.) Notably, Plaintiff
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filed his Motions in Limine and Memorandum of Contentions of Fact and Law by the

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deadlines ordered. See Groce v. Claudat, No. 09-cv-01630, 2013 WL 1828555, at *2

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(S.D. Cal. Apr. 30, 2013) (for pro se prisoners, date of mailing is deemed filing date).
Come July, this case will have been pending three years. Considering Plaintiffs
demonstrated ability to litigate his case and meet pretrial deadlines, as well as the Court's
decision on his Motion for Appointment of Counsel, the Court does not find good cause
to extend the pretrial schedule. Accordingly, Plaintiffs Motion is DENIED.

III.

MOTION FOR REFERRAL TO PRISONER SETTLEMENT
PROGRAM

Plaintiff also moves the Court to refer his case to the prisoner settlement program.
Given the length of time this case has been pending and the Court's March order setting a
trial schedule, the court does not find good cause to refer this case to the prisoner
settlement program. The parties are encouraged, nevertheless, to reach a resolution
before trial. Plaintiffs Motion is DENIED.

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CONCLUSION

For the reasons set forth above, the Court hereby:

(I)DENIES Plaintiffs Motion for Appointment of Counsel (Docket No. 77);
(2)DENIES Plaintiffs Motion to Extend Schedules for Pretrial Conference and
Relevant Pretrial Deadlines (Docket No. 81); and

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(3)DENIES Plaintiffs Motion for Referral to Prisoner Settlement Program

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(Docket No. 83).

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IT IS SO ORDERED.

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DATED:

d,2016

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United States District Judge

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J3-cv-0807 BEN (KSC)