Arellano, Jr. v. Dean et al

Filing 69

ORDER:(1) Denying 67 Motion to Reconsider or Appeal; (2) Denying as Moot 65 Motion for Extension of Time and (3) Granting Extension of Time. Plaintiff may file an amended Complaint on or before 9/17/2018. Signed by Judge Janis L. Sammartino on 8/20/2018. (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAUL ARELLANO, JR.,

Case No.: 15-CV-2247 JLS (JLB)
Plaintiff,

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ORDER: (1) DENYING MOTION TO
RECONSIDER OR APPEAL; (2)
DENYING AS MOOT MOTION FOR
EXTENSION OF TIME; AND (3)
GRANTING EXTENSION OF TIME

v.
DR. K. DEAN, et al.,
Defendants.

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(ECF Nos. 65, 67)

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Presently before the Court is Plaintiff Raul Arellano, Jr.’s Motion for Extension of

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Time to File a Reconsideration or an Appeal. (ECF No. 65.) Also before the Court is

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Plaintiff’s Motion to Reconsider or Appeal. (“MTN,” ECF No. 67.) On June 22, 2018,

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Magistrate Judge Jill Burkhardt denied Plaintiff’s motion to appoint counsel and extended

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the time for Plaintiff to file an amended Complaint until July 19, 2018. (“Prior Order,”

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ECF No. 62.) The Court construes Plaintiff’s motion as an objection to Judge Burkhardt’s

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order.

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Federal Rule of Civil Procedure 72(a) provides that a party may file objections to a

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magistrate judge’s nondispositive order within fourteen days. Plaintiff’s objection was

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timely filed with the fourteen-day window1 and the Court DENIES AS MOOT Plaintiff’s

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Motion for Extension of Time, (ECF No. 65).

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The Court turns to the Plaintiff’s objection of Magistrate Judge Burkhardt’s order.

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In her order, Judge Burkhardt denied Plaintiff’s request for counsel because “Plaintiff

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offer[ed] no evidence to the effect that he has a likelihood of success on the merits.” (Prior

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Order 2.) Further, Judge Burkhardt found that “Plaintiff is unable to demonstrate his

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inability to articulate his claims without the effective assistance of counsel.” (Id. at 3.)

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Judge Burkhardt acknowledged that Plaintiff has complained of blurred vision, but noted

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that “Plaintiff has been able to file appropriate motions and responses, discuss case law

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with Defendants’ attorney, and correspond with the Court and Defendants’ counsel.” (Id.

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(citing ECF. No. 60 at 2).) And, the prison has afforded Plaintiff several accommodations.

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(Id.) Judge Burkhardt concluded that Plaintiff failed to meet the exceptional circumstances

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requirement to appoint counsel.

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Plaintiff generally asserts that if he does not have an attorney appointed then he will

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be unable to proceed in his case.2 (MTN 1.) He objects to Judge Burkhardt’s first finding

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on the grounds that he has survived the initial motion to dismiss stage and thus he has

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“change to win the case if facts stated are believed by [the] jury.” (Id. at 2.) Plaintiff

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maintains that going through discovery without an attorney would be prejudicial because

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he is blind. (See id.) He objects to the Judge Burkhardt’s second finding because some of

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his prior filings were before he lost his vision and that even though he has been able to file

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with the assistance of other inmates, those inmates cannot assist him with legal research.

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(See id. at 3.) Plaintiff further contends that the accommodations given to him are

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insufficient because he is blind and cannot utilize them in the first instance. (See id. at 4.)

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He asserts that only an attorney can remedy his inability to conduct legal research to

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Pro se prisoners, proceeding under § 1983, are deemed to have filed when they deliver their filings to
prison authorities for forwarding to the clerk. See Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009).
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Plaintiff has not personally written the motion; instead, it appears that a fellow inmate is transcribing
Plaintiff’s words.
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prosecute his case.

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Magistrate Judge Burkhardt correctly identified and applied the controlling standard

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for appointment of counsel. There is no constitutional right to counsel in a civil case.

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Lassiter v. Dep’t of Social Servs. of Durham Cnty., 452 U.S. 18, 25 (1981). While under

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28 U.S.C. § 1915(e)(1), district courts have some limited discretion to “request” that an

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attorney represent an indigent civil litigant, Agyeman v. Corr. Corp. of Am., 390 F.3d 1101,

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1103 (9th Cir. 2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128 (2005), this

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discretion is rarely exercised and only under “exceptional circumstances.” Id.; see also

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional

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circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the

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merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the

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complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). “Neither of these considerations is

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dispositive and instead must be viewed together.” Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009) (citing Wilborn, 789 F.2d at 1331).

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Here, Judge Burkhardt correctly pointed out that some of Plaintiff’s claims have

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survived the motion to dismiss stage but have not progressed beyond the motion for

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summary judgment stage. Thus, the veracity of Plaintiff’s claims have not been tested.

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Plaintiff cited a few cases to support his argument for appointing counsel. None are

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applicable. The court in Gamble v. McDaniel, No. 15-CV-619-JAD-VCF, 2016 WL

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3769349, at *3 (D. Nev. July 14, 2016), denied a request for counsel despite alleged injuries

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to the plaintiff that he had lost vision in his left eye. In Miller v. Williams, No. 16-cv-895-

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MMD-VCF, 2017 U.S. Dist. Lexis 116260, at *2 (D. Nev. July 25, 2017), the district court

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granted a motion to appoint counsel but did not discuss any of the details of that case to

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which the Court could compare. Thus, the Court finds Plaintiff has not demonstrated a

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likelihood of success on the merits.

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Next, Plaintiff has not demonstrated an inability to articulate his claims in light of

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the complexity of the legal issues involved. First, the Court does not have any independent,
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medical verification of Plaintiff’s blindness. In May 2018, Defendants submitted two

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status reports indicating that Plaintiff’s treating ophthalmologist has evaluated Plaintiff and

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has not found a medical reason for Plaintiff’s claimed vision problem. (See ECF No. 61,

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at 2; see also ECF No. 60, at 3.) Second, Plaintiff has been able to file motions, with the

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assistance of other prisoners, and has included citations to cases in his motions. Third, his

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legal claims are not particularly complex. In sum, the Court finds that Judge Burkhardt

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properly decided Plaintiff’s motion.

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The Court is mindful of Plaintiff’s claimed medical issues. It will continue to

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monitor Plaintiff’s medical situation and may request additional briefing from Defendants

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concerning any further medical diagnosis of Plaintiff’s condition. The Court will also

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consider Plaintiff’s further requests to extend time to respond so that he has additional time

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to read, research, and write. However, Plaintiff’s situation does not rise to the “exceptional

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circumstances” warranting appointment of counsel. The Court DENIES his motion to

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reconsider, (ECF No. 67). Judge Burkhardt granted Plaintiff an extension of time to file

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an amended complaint to July 19, 2018. Plaintiff requested an extension of time while the

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Court considered the motion for reconsideration. (MTN 5.)

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In light of Plaintiff’s vision issue, the Court GRANTS Plaintiff’s request for

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additional time. Plaintiff MAY FILE an amended Complaint on or before September 17,

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2018. The Court cautions Plaintiff that his amended complaint must be complete in itself

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without reference to his prior complaint(s) and, to the extent Plaintiff re-alleges claims

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dismissed with leave to amend, cure the deficiencies identified in this Court’s March 12,

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2018 order, (ECF No. 52). See Civil Local Rule 15.1; Lacey v. Maricopa Cnty., 693 F.3d

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896, 928 (9th Cir. 2012) (en banc) (noting that claims dismissed with leave to amend which

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are not re-alleged in an amended pleading may be “considered waived if not repled.”); Hal

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Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)

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(“[A]n amended pleading supersedes the original.”).

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If Plaintiff does not file an amended complaint then the case will proceed as to the claims

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and Defendants that survived the previous motion to dismiss.

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IT IS SO ORDERED.
Dated: August 20, 2018

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