McGinnis v. Ramos

Filing 29

ORDER Denying Plaintiff's 28 Third Motion to Request Appointment of Counsel. Signed by Magistrate Judge Jill L. Burkhardt on 4/17/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANTHONY McGINNIS,
Plaintiff,

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Case No.: 15-cv-2812 JLS (JLB)
ORDER DENYING PLAINTIFF’S
THIRD MOTION TO REQUEST
APPOINTMENT OF COUNSEL

v.
A.T. RAMOS,

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Defendant.

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[ECF No. 28]

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Before the Court is Plaintiff’s third motion requesting the appointment of counsel.

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(ECF No. 28.) Having reviewed Plaintiff’s request for counsel in conjunction with the case

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record, and for the reasons below, the Court concludes that Plaintiff fails to meet the criteria

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for the Court to appoint him counsel. Accordingly, Plaintiff’s motion is DENIED.

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I.

LEGAL STANDARD

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There is no constitutional right to the appointment of counsel in § 1983 cases.

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Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, the Ninth Circuit has

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held that “a court may under ‘exceptional circumstances’ appoint counsel for indigent civil

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litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th

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Cir. 2009), cert. denied, 559 U.S. 906 (2010) (quoting Agyeman v. Corrs. Corp. of Am.,

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390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom., Gerber v. Agyeman, 545 U.S.
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1128 (2005)). “When determining whether ‘exceptional circumstances’ exist, a court must

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consider ‘the likelihood of success on the merits as well as the ability of the petitioner to

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articulate his claims pro se in light of the complexity of the legal issues involved.’” Id.

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(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983)).

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considerations is dispositive and instead must be viewed together. Id. (quoting Wilborn v.

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

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II.

Neither of these

DISCUSSION
Plaintiff’s Likelihood of Success on the Merits of His Claim

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A.

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Plaintiff’s complaint alleges claims of assault, negligence, and a violation of his

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Eighth Amendment right to be free from cruel and unusual punishment against Defendant

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Ramos. (ECF No. 1 at 3–5.) However, the Court dismissed Plaintiff’s assault and

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negligence claims on February 3, 2017, on the basis that they are time-barred. (See ECF

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Nos. 23, 27.) Thus, only Plaintiff’s Eighth Amendment claim remains pending.

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Plaintiff argues in his third motion for appointment of counsel that his “likelihood

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of success on the merits of his 1983 civil action is good, if not substantial[,] just on the

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present and current assertions in [his] complaint.” (ECF No. 28 at 5–6.) In addition,

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Plaintiff argues that he has demonstrated a likelihood of success on the merits because his

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complaint survived the Court’s screening process and Defendant’s motion to dismiss. (Id.

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at 6.)

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Plaintiff’s argument that he is likely to succeed on the merits of his claim based on

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the assertions in his complaint alone is insufficient to support the appointment of counsel

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under the Ninth Circuit’s exceptional circumstances test. To show that he has a likelihood

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of success at trial, Plaintiff must do more than merely allege that one of his constitutional

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rights was violated. He must provide evidence to the effect that he has a likelihood of

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success on the merits of his allegations. See Torbert v. Gore, No. 14-cv-2991 BEN (NLS),

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2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016) (“A plaintiff that provides no evidence

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of his likelihood of success at trial fails to satisfy the first factor of the [exceptional

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circumstances] test.”); Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993)
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(“Without some evidence that he is likely to succeed at trial, plaintiff fails to satisfy . . .

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[the exceptional circumstances test’s] first factor.”).

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Here, Plaintiff has offered no evidence that supports the allegations made in his

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complaint. Without such evidence, the Court cannot make a determination that Plaintiff

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is likely to succeed on the merits of his Eighth Amendment claim. A prison official

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violates an inmate’s Eighth Amendment right to be free from cruel and unusual

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punishment when he acts with deliberate indifference to a substantial risk of serious harm

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to the inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). To prevail on his Eighth

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Amendment claim against Defendant Ramos, Plaintiff must prove two things. Id. at 834.

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First, Plaintiff must prove that the deprivation he allegedly suffered as a result of

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Defendant Ramos’ conduct was “sufficiently serious.” Id. For an Eighth Amendment

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claim based on a failure to prevent harm, Plaintiff must show that he was incarcerated

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under conditions that posed a substantial risk of serious harm. Id.

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Second, Plaintiff must prove that Defendant Ramos had a “sufficiently culpable

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state of mind,” which, in the context of prisoner § 1983 cases, is one of deliberate

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indifference. Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). To act with

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deliberate indifference, a prison official must know of and disregard an excessive risk to

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an inmate’s health or safety. Id. at 837. That is, the official must both be aware of facts

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from which the inference could be drawn that a substantial risk of serious harm exists and

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draw the inference. Id.

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Plaintiff’s complaint alleges that on December 11, 2012, Defendant transported

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Plaintiff to an optometry appointment outside of the prison in which he was incarcerated.

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(ECF No. 1 at 3.) When Plaintiff and Defendant returned to the prison, Defendant

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instructed Plaintiff to exit the transport van while Plaintiff was restrained by leg shackles.

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(Id. at 3–4.) Plaintiff alleges that he requested that Defendant remove his leg restraints

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and place a stable step in front of the van’s sliding door. (Id. at 4.) Plaintiff alleges further

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that Defendant did not remove Plaintiff’s leg shackles, and he placed a milk crate on the

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ground in front of the van’s door instead of a stepping stool. (Id.) When Plaintiff stepped
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onto the milk crate to exit the van, the crate slipped from under Plaintiff’s foot and

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Plaintiff fell. (Id. at 5.) Plaintiff alleges that he suffered “injuries to [his] left-knee and

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thigh, and exacerbated and/or made much worse the pre-existing injuries to [his] left-side

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lower-back and hip.” (Id.)

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After the fall, Plaintiff alleges, Defendant grabbed Plaintiff and pulled him up from

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the ground forcefully, causing Plaintiff “extreme pain.” (Id.) Defendant then allegedly

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forced Plaintiff to walk to the prison’s Central Infirmary to seek medical attention while

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injured, limping, and still restrained by leg shackles. (Id.) When a prison medical staff

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member asked Defendant why he did not use the stepping stool designated for assisting

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inmates in exiting transportation vans, Defendant allegedly responded that he “didn’t have

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time to get it.” (Id. at 5–6.)

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Without evidence to support Plaintiff’s allegations, the Court cannot make a

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determination that Plaintiff’s allegations are true and accurate, that Defendant’s alleged

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conduct posed a substantial risk of serious harm to Plaintiff, and that Defendant Ramos

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knew of and purposefully disregarded the fact that his actions would result in an excessive

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risk to Plaintiff’s health or safety. Thus, at this early stage of the case, when the parties

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have not yet engaged in discovery and proffered to the Court evidence in support of their

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claims and defenses, the Court cannot find that Plaintiff is likely to succeed on the merits

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of his Eighth Amendment claim against Defendant Ramos. See Garcia v. Smith, No. 10-

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cv-1187 AJB (RBB), 2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) (denying motion

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for appointment of counsel when it was too early to determine whether any of plaintiff’s

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claims would survive a motion for summary judgment).

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Further, that Plaintiff’s complaint survived the Court’s screening process and

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Defendant’s motion to dismiss does not demonstrate that Plaintiff is likely to succeed at

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trial. The Court’s screening standard for determining whether a plaintiff stated a claim

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upon which relief can be granted is the same as the Federal Rule of Civil Procedure 12(b)(6)

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standard for determining whether a plaintiff stated a plausible claim for relief. Watison v.

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Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). The Rule 12(b)(6) standard tests not whether
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a plaintiff will ultimately prevail on his alleged claim but whether he is entitled to offer

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evidence to support his claim. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, the

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Court’s screening process and Defendant’s motion to dismiss did not test the merits of

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Plaintiff’s claim but rather only whether Plaintiff adequately stated a claim that could

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potentially have merit.

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For the reasons above, the Court finds that this factor does not support the
appointment of counsel.
Plaintiff’s Ability to Articulate Claim Without the Assistance of Counsel

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B.

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Plaintiff also argues in his third motion for appointment of counsel that a number of

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circumstances demonstrate that he is unable to articulate his claim pro se in light of the

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complexity of the legal issues involved. First, Plaintiff argues that the Court should appoint

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him counsel because he is indigent, he has limited access to the law library and legal

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research materials, he is a layman with no legal experience and training and who is

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confused by complex legal reasoning and about his responsibilities in the case, and it is

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difficult for him to obtain the legal assistance of fellow inmates. (ECF No. 28 at 2–3.) As

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stated in the Court’s orders on Plaintiff’s first and second motions requesting the

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appointment of counsel (ECF Nos. 22, 26), these burdens are common to most prisoners

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representing themselves pro se and do not establish the exceptional circumstances that

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would support the appointment of counsel. See, e.g., Wood v. Housewright, 900 F.2d 1332,

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1335–36 (9th Cir. 1990) (denying appointment of counsel where plaintiff complained that

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he had limited access to law library and lacked a legal education).

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Second, Plaintiff argues that the Court should appoint him counsel because the issues

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in this case are complex and will require substantial discovery. (ECF No. 28 at 2–4.) The

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Court has reviewed Plaintiff’s complaint and finds that the issues raised are not particularly

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complex. As discussed above, Plaintiff is proceeding with a single Eighth Amendment

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claim against a single defendant concerning an isolated event that involves straightforward

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factual allegations. The Court is able to understand Plaintiff’s claim and the relief that he

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seeks. Moreover, the need for discovery to develop facts is common to most litigation and
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does not automatically qualify the issues in a case as complex. See Wilborn, 789 F.2d at

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1331; see also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (holding that while

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a pro se inmate might fare better with counsel during discovery, this is not the test for

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determining whether to appoint counsel). Accordingly, the Court concludes that Plaintiff’s

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case does not rise to the level of complexity that would support the appointment of counsel.

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Third, Plaintiff argues that the Court should appoint him counsel because he suffers

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from dyslexia, which impairs his ability to read. (ECF No. 28 at 6–7.) Plaintiff argues that

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his reading impairment is so severe that it prevented him from filing an opposition to

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Defendant’s motion to dismiss. (Id. at 7.) A neuropsychological performance assessment

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of Plaintiff that Plaintiff attached to his third motion for appointment of counsel indicates

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that Plaintiff’s dyslexia places him at a second grade reading level. (Id. at 19–20.)

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While the Court is sympathetic to Plaintiff’s situation, Plaintiff’s reading disability,

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on its own and without a showing that Plaintiff is likely to succeed on the merits of his

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claim, is insufficient to demonstrate the type of exceptional circumstances that would

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necessitate the appointment of counsel. See Molina v. Holland, No. 1:15-cv-01260-EPG

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(PC), 2016 WL 7451502, at *2 (E.D. Cal. Dec. 27, 2016) (denying motion for appointment

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of counsel of inmate who could not speak, read, write, or understand the English language

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because the court could not make a determination that the plaintiff was likely to succeed

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on the merits of his claims); Gholston v. Adams, No. 1:09-cv-01343-YNP PC, 2010 WL

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144312, at *1–2 (E.D. Cal. Jan. 8, 2010) (denying motion for appointment of counsel of

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50-year-old developmentally disabled and illiterate inmate because inmate did not

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demonstrate a likelihood of success on the merits of his claims).

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In addition, while Plaintiff argues that his reading impairment prevented him from

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filing an opposition to Defendant’s motion to dismiss (ECF No. 28 at 6–7), a review of

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Plaintiff’s other filings in this case demonstrate that Plaintiff is able to effectively

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communicate his claim and requests for relief with the Court. To date, Plaintiff has filed a

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complaint (ECF No. 1), three motions for appointment of counsel (ECF Nos. 21, 25, 28),

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a successful motion to proceed in forma pauperis (ECF No. 3), and two successful motions
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for extensions of time to file an opposition to Defendant’s motion to dismiss (ECF Nos.

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12, 18). All of these filings were well written, organized, and clear. In addition, Plaintiff

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successfully coordinated with the U.S. Marshals Service to effect service of process on

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Defendant Ramos. (ECF No. 6.) Thus, Plaintiff has shown that despite his reading

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disability, he has been able to articulate his claim in light of the relative complexity of his

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case. See Thomas v. R.T.C. Grounds, No. C 13-4367 CW (PR), 2013 WL 6406201, at *4

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(N.D. Cal. Dec. 6, 2013) (denying motion for appointment of counsel of illiterate pro se

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prisoner where claims involved were not complex and plaintiff was capable of presenting

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his claims effectively); Garcia v. Cal. Dep’t of Corr. & Rehab., No. 12cv1084 IEG (KSC),

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2013 WL 1788595, at *2 (S.D. Cal. Apr. 26, 2013) (denying motion for appointment of

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counsel of prisoner who claimed to “not understand anything” when he demonstrated a

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good grasp of basic litigation procedure and an ability to articulate the factual allegations

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in his complaint through his filings in the case).

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The Court does not doubt that Plaintiff, like most pro se litigants, finds it difficult to

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articulate his claim and would be better served with the assistance of counsel. It is for this

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reason that in the absence of counsel, federal courts employ procedures that are highly

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protective of a pro se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per

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curiam) (holding that the pleadings of a pro se inmate must be held to less stringent

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standards than formal pleadings drafted by lawyers). In fact, where a plaintiff appears pro

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se in a civil rights case, the court must construe the pleadings liberally and afford the

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plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d

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621, 623 (9th Cir. 1988). Thus, as long as a pro se litigant is able to articulate his claim in

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light of the complexity of the issues involved, as Plaintiff is here, the exceptional

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circumstances that might support the appointment of counsel do not exist.

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III.

CONCLUSION

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Viewing the exceptional circumstances factors together, Plaintiff has not shown a

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likelihood of success on the merits of his case or that he cannot articulate his claim and

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litigate this action pro se. Accordingly, Plaintiff has not established the exceptional

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circumstances required for the appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1).

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Plaintiff’s third motion for appointment of counsel (ECF No. 28) is DENIED.

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IT IS SO ORDERED.
Dated: April 17, 2017

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