Padilla v. Kernan et al

Filing 47

ORDER denying Plaintiff's 46 Motion to Appoint Counsel. Because Plaintiff has not shown his claims are likely to succeed, nor has Plaintiff shown he is incapable of adequately representing himself on complex claims, Court cannot find reason to appoint counsel to assist Plaintiff. Signed by Magistrate Judge Peter C. Lewis on 2/13/2018. (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MAURO PADILLA,

Case No.: 3:16-cv-02339-BAS-PCL
Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL

SCOTT KERNAN, et al.,
Defendant.

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I. INTRODUCTION

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Before this Court now is Plaintiff Mauro Padilla (“Plaintiff”), a state prisoner at

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Centinela State Prison, proceeding pro se and in forma pauperis. Plaintiff has filed a

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motion for appointment of counsel, requesting the Court appoint counsel to represent

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Plaintiff in this matter. (Doc. 46 at 1.) This request is based on 28 U.S.C. § 1915(e)(1)

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which states “the court may request an attorney to represent any person unable to afford

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counsel.” Id.

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Plaintiff filed the instant suit based on Centinela Prison staff’s denial of Plaintiff’s

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request to participate in the Jewish Kosher Diet Plan (“JKDP”). (See generally Doc. 1.)

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While at this point in time, Plaintiff has been reinstated in the JKDP, Plaintiff alleges his

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suit is still proper and his injuries are not yet moot because he has suffered damages

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which were not fully remedied by Centinela’s reinstating Plaintiff in the JKDP.
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Specifically, Plaintiff alleges he spent over $1,6001 purchasing kosher food from the

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commissary, and as a result of Plaintiff’s limited funds to do so, Plaintiff lost 39 pounds

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between March 26, 2015 and January 12, 2016. (Doc. 1 at 9, 115-139.)

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Petitioner has filed a motion for appointment of counsel previously in this case.

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(Doc. 2.) This original motion was filed concurrently with the complaint, but was denied

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by the Court on procedural grounds as well as the Court finding Plaintiff’s ability to

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“articulate the factual bases for his claims” adequate to proceed pro se. (Doc. 3 at 4.)

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II. LEGAL STANDARD

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Generally, a person has no right to counsel in civil actions. See Storseth v.

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Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, a court may under “exceptional

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circumstances” appoint counsel for indigent civil litigants pursuant to 28 U.S.C. §

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1915(e)(1). Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert.

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denied sub nom. Gerber v. Agyeman, 545 U.S. 1128 (2005). When determining whether

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“exceptional circumstances” exist, a court must consider “the likelihood of success on the

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merits as well as the ability of the petitioner to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

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1983). Neither of these considerations is dispositive but instead must be viewed together.

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
Only “rarely” will a federal court find a case to be so complex that it is appropriate

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to appoint counsel for a civil litigant who faces no loss of liberty in the controversy at

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hand. See Dotson v. Doctor, 2014 U.S. Dist. LEXIS 72791 *1 n.1 (E.D. Cal. May 28,

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2014) (“Counsel is appointed in civil cases such as this only rarely, if exceptional

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circumstances exist”); United States v. Melluzzo, 2010 U.S. Dist. LEXIS 53053 *3 (D.

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Ariz. May 3, 2010) (“[A]ppointment of counsel in a civil case is rarely invoked . . . ”);

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Plaintiff provided this amount in his complaint. (Doc. 1 at 9.) However, per the Court’s calculations,
the actual amount spent by Plaintiff, as provided in his receipts attached as Exhibit U was $1,404.27. (Id.
at 95-110.)
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see also Schwartzmiller v. Roberts, 1994 U.S. Dist. LEXIS 1620 *3 n.1 (D. Or. Feb. 11,

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1994) (“It is extremely rare that indigent civil defendants are appointed counsel in

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judicial proceedings”).

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III. DISCUSSION
In this case, Plaintiff has alleged that when Centinela Prison staff denied Plaintiff

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from the JKDP, Plaintiff was deprived of his First, Fourth, Eighth, and Fourteenth

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Amendment rights. (Doc. 1 at 8, 15.) In Plaintiff’s motion for appointment of counsel,

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Plaintiff does not put forth arguments which show any of these claims are likely to

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succeed on the merits. See Hill v. Oakley, 2014 U.S. Dist. LEXIS 193595 (D. Nev. May

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9, 2014) (denying motion because Plaintiff failed to put forth any facts showing his

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claims were likely to succeed). Instead, Plaintiff simply cites to the strain his

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imprisonment imposes upon his ability to litigate his claim. (Doc. 46 at 1.) Additionally,

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Plaintiff claims the issues he has raised are “complex, and will require significant

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research and investigation.” (Id.) Finally, Plaintiff argues an attorney would be better able

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to present evidence and cross examine witnesses, especially in the event conflicting

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testimony is introduced. (Id. at 2.)

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In listing these reasons as the only grounds for the Court to appoint counsel to

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assist Plaintiff, Plaintiff has not only failed to meet the first requirement to show this case

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includes “exceptional circumstances,” but also failed to show the claims are so complex

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that Plaintiff cannot adequately represent himself. While Plaintiff has not shown his

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claim is likely to succeed at trial, Plaintiff has not discussed his claim at all in his motion.

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Thus, this motion cannot succeed without such a showing.

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Similarly, Plaintiff seems well able to represent himself in this case. Apart from the

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complaint filed in this Court in the current case, Plaintiff has also filed a petition for writ

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of habeas corpus in the Superior Court of California, alleging the claims made herein. (Id.

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at 69.) In doing so, Plaintiff seemingly presented valid and coherent arguments, as the

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Superior Court requested an informal response to questions posed by Plaintiff. (Id.) A

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prisoner incapable of representing himself likely would not have been able to receive
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such treatment of his petition. Additionally, Plaintiff has filed numerous motions in this

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case and successfully defended a motion to dismiss. (See, e.g., Doc. 41.)

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Because Plaintiff has not shown his claims are likely to succeed, nor has Plaintiff

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shown he is incapable of adequately representing himself on complex claims, the Court

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cannot find reason to appoint counsel to assist Plaintiff. Accordingly, Plaintiff’s motion

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for appointment of counsel is DENIED.

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IT IS SO ORDERED.
Dated: February 13, 2018

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