Soares v. Paramo et al

Filing 59

ORDER Denying Plaintiff's 58 Motion for Appointment Counsel, without prejudice. Signed by Magistrate Judge Ruben B. Brooks on 5/17/2016. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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MANUEL M. SOARES,
CDCR # F-39579,

Case No.: 13cv2971 BTM (RBB)
Plaintiff,

ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
[ECF NO. 58]

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vs.
DANIEL PARAMO, Warden;
G. STRATTON, Associate Warden;
M. FLYNN, Correctional Counselor;
J. LEARD-HANSSON, Psychiatrist;
E. PHAN, Psychologist,
Defendants.

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Manuel M. Soares (“Plaintiff”), is a prisoner currently incarcerated at the

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California Health Care Facility in Stockton, California, and is proceeding pro se in this

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civil rights action filed pursuant to 42 U.S.C. § 1983 [ECF Nos. 1, 9]. In his Complaint,

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he alleges that Defendants correctional and mental health care officials employed at

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Richard J. Donovan Correctional Facility, where Plaintiff was incarcerated in November

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2012, violated his Fourteenth Amendment right to due process when they committed him
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to a mental hospital, Atascadero State Prison. (Compl. 1-2, 3-5, 8, ECF No. 1.) Soares

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filed a supplemental pleading, alleging Defendants violated his First Amendment right by

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placing him in administrative segregation in retaliation for filing an inmate grievance

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regarding his commitment proceeding and for filing another grievance alleging that

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falsified documentation had been placed in his medical file. (Suppl. Compl. 9-10, ECF

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No. 7.) On April 13, 2016, he filed a Motion for Appointment of Counsel pursuant to 28

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U.S.C. § 1915(e)(1) [ECF No. 58].1 For the following reasons, Plaintiff’s Motion is

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DENIED without prejudice.

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I.

Legal Standard

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“The court may request an attorney to represent any person unable to afford

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counsel.” 28 U.S.C.A. § 1915(e)(1) (West 2010). But “it is well-established that there is

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generally no constitutional right to counsel in civil cases.” United States v. Sardone, 94

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F.3d 1233, 1236 (9th Cir. 1996) (citing Hedges v. Resolution Trust Corp., 32 F.3d 1360,

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1363 (9th Cir. 1994)). There is also no constitutional right to a court-appointed attorney

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in § 1983 claims. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth

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v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); accord Campbell v. Burt, 141 F.3d

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927, 931 (9th Cir. 1998). Federal courts do not have the authority “to make coercive

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appointments of counsel.” Mallard v. United States Dist. Ct., 490 U.S. 296, 310 (1989)

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(discussing § 1915(d)); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d

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564, 569 (9th Cir. 1995).

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Nevertheless, district courts have discretion, pursuant to 28 U.S.C. § 1915(e)(1), to

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request attorney representation for indigent civil litigants upon a showing of exceptional

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circumstances. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)

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(citing Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)); Terrell v. Brewer, 935

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This is Plaintiff’s second request for court-appointed counsel. (See Pl.’s Mot. Appoint
Counsel, ECF No. 3.) The Court previously denied Soares’s Motion for Appointment of
Counsel [ECF No. 9].
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F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 824 (9th Cir.

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1989) (“Appointment of counsel in civil matters in the Ninth Circuit is restricted to

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‘exceptional circumstances’”) (quotation omitted). “A finding of the exceptional

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circumstances of the plaintiff seeking assistance requires at least an evaluation of the

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likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s

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ability to articulate his claims ‘in light of the complexity of the legal issues involved.’”

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Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir. 1986)). “‘Neither of these factors is dispositive and both must be viewed together

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before reaching a decision.’” Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at

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1331).

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II.

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Discussion
Plaintiff seeks an appointment of counsel to assist him at a deposition. (Pl.’s Mot.

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Appointment Counsel 2, ECF No. 58.) Soares claims that he was given notice that

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Defendants will depose him on April 5, 2016. (Id.) Plaintiff argues that he “would be

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prejudiced in this type of procedure without an experienced Attorney present to preserve

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his rights in this matter.” (Id.) He does not explain why he would not be able to answer

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deposition questions in this case without the assistance of counsel.

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Soares was able to participate pro se in a telephonic case management conference

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with this Court on October 9, 2015. (See Mins., Oct. 9, 2015, ECF No. 41.) During the

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conference, he could articulate his position and communicate about his claims. The

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Court finds no reason why Plaintiff would be unable to participate in a video deposition

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without being represented by counsel. Additionally, Plaintiff’s Motion was signed on

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March 23, 2016, but was not filed with the Court until April 13, 2016, ostensibly after the

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date Soares’s deposition was to be held. Thus, Plaintiff’s request for a lawyer to be

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present at his deposition is now moot.

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The docket in this case demonstrates that Plaintiff is able to adequately litigate his

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claims by filing appropriate pleadings, motions, exhibits, notices, and requests with the

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Court. (See Compl., ECF No. 1; Suppl. Compl., ECF No. 7; Ex. H Suppl. Compl., ECF
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No. 12; Objection, ECF No. 22; Resp. Opp’n Mot. Summ. J., ECF No. 24; Decl. Supp.

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Pl.’s Opp’n Mot. Summ. J., ECF No. 28; Notice Regarding Administrative Exhaustion,

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ECF No. 32; Mot. Leave Join/Amend, ECF No. 45; Pl.’s Mot. Summ. J., ECF No. 55.)

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As mentioned above, this is Plaintiff’s second request for appointment of counsel. In

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denying Soares’s first Motion for Appointment of Counsel, the Court noted that

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“Plaintiff’s Complaint demonstrates an ability to articulate essential facts supporting his

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claims and to identify the relevant constitutional principles implicated.” (Order Denying

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Mot. Counsel 5, ECF No. 9.) The Court found that Soares had “an adequate grasp of the

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facts supporting his case as well as the relatively straightforward issues involved.” (Id.)

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The Court acknowledges that any pro se litigant “would be better served with the

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assistance of counsel.” Rand, 113 F.3d at 1525 (citing Wilborn, 789 F.2d at 1331). In

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this instance, however, Plaintiff has shown the ability to articulate his claims in this

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matter. This factor weighs against appointing counsel.

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III.

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Conclusion
For these reasons, Plaintiff’s for Appointment of Counsel pursuant to 28 U.S.C.

§ 1915(e)(1) [ECF No. 58] is DENIED without prejudice.
IT IS SO ORDERED.
Dated: May 17, 2016

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