Singleton v. Kernan et al

Filing 70

ORDER denying Plaintiff's 65 Motion to Appoint Counsel. Court does not find the "exceptional circumstances" required for appointment of counsel under 28 USC 1915(e)(1). Signed by Magistrate Judge Nita L. Stormes on 9/26/2017. (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 v. 14 15 16 Case No.: 3:16-cv-02462-BAS-NLS KELVIN X. SINGLETON, Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL (ECF No. 65) SCOTT KERNAN, et al., Defendants. 17 18 19 Before the Court is plaintiff Kelvin X. Singleton’s (“Plaintiff”) motion for 20 appointment of counsel. ECF No. 65. Plaintiff is incarcerated at the California 21 State Prison, Sacramento, located in Represa, California. He is proceeding pro se 22 and has filed a civil Complaint pursuant to 42 U.S.C. § 1983 relating to incidents 23 occurring while incarcerated at R.J. Donovan Correctional Facility in San Diego. 24 See, ECF No. 32 (First Amended Complaint); ECF No. 65 at 2. 25 I. PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL 26 Plaintiff asks this Court to appoint counsel from the Court’s pro bono panel. 27 ECF No. 65. He argues the Court should appoint counsel because (1) the case is 28 1 3:16-cv-02462-BAS-NLS 1 complex, and (2) he suffers from multiple medical issues. Id. at 2-4.1 In support, 2 Plaintiff asserts he requires counsel to adequately challenge the policies, practices, 3 and procedures of the urinalysis practice, to complete discovery on the underlying 4 claims of evidence tampering and forging of legal documents, as well as to ensure 5 proper filing and trial preparation. Id. at 2-4. 6 7 Plaintiff also requests the Court take judicial notice of the appointment of appellate pro-bono counsel. Plaintiff’s request for judicial notice is GRANTED.2 8 II. DISCUSSION 9 A. Legal Standard 10 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. 11 Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). In 12 pro se and in forma pauperis proceedings, district courts do not have the authority 13 “to make coercive appointments of counsel.” Mallard v. United States District 14 Court, 490 U.S. 296, 310 (1989). But they do have discretion to request that an 15 attorney represent indigent civil litigants upon a showing of “exceptional 16 circumstances.” 28 U.S.C. § 1915(e)(1); Agyeman v. Corrs. Corp. of Am., 390 F.3d 17 1101, 1103 (9th Cir. 2004). 18 Finding exceptional circumstances entails “an evaluation of both the 19 ‘likelihood of success on the merits and the ability of the plaintiff to articulate his 20 claims pro se in light of the complexity of the legal issues involved.’ Neither of 21 these issues is dispositive and both must be viewed together before reaching a 22 decision.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), quoting Wilborn 23 v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 24 Here, Plaintiff fails to satisfy either factor of the Wilborn test. 25 26 27 28 1 2 Page citations are to the ECF heading page numbers. The Court notes that the circumstances of appointment of appellate counsel are distinguishable from the circumstances before the Court, and that the Ninth Circuit’s order affirmed the magistrate judge’s denial of Plaintiff’s requests for counsel in that underlying case. 2 3:16-cv-02462-BAS-NLS 1 2 B. Likelihood of Success on the Merits Plaintiff has not established a likelihood of success on the merits. Plaintiff’s 3 motion for appointment of counsel does not address likelihood of success and offers 4 no evidence beyond Plaintiff’s own assertions that there are “extraordinary 5 circumstances.” A plaintiff that provides no evidence of his likelihood of success 6 at trial fails to satisfy the first factor of the Wilborn test. Bailey v. Lawford, 835 F. 7 Supp. 550, 552 (S.D. Cal. 1993); see also, Bailey v. Lawford, 835 F. Supp. 550, 552 8 (S.D. Cal. 1993) (concluding likelihood of success not shown where the plaintiff 9 did not present any evidence other than his own assertions to support his claims). 10 Without any evidence supporting a likelihood of success on the merits, Plaintiff has 11 not satisfied the first Wilborn factor. 12 Moreover, in this case the pleadings are not yet set: motions to dismiss and 13 motions for summary judgment remain pending (ECF Nos. 36, 38, 50, 51); the 14 District Judge granted Plaintiff’s request for reconsideration of the request for 15 preliminary injunction (ECF No. 54), but has not issued an order on the 16 reconsideration; and this Court’s report and recommendation regarding Plaintiff’s 17 request for leave to supplement his complaint (ECF No. 68) is in the period in 18 which Plaintiff may file objections and has not yet been considered by the District 19 Judge. As a result, it is difficult for the Court to determine the likelihood that 20 Plaintiff will succeed on the merits. 21 C. Plaintiff’s Ability to Articulate His Claims 22 Where a pro se civil rights plaintiff shows he has a good grasp of basic 23 litigation procedure and has been able to adequately articulate his claims, he does 24 not demonstrate exceptional circumstances to warrant appointing counsel. See 25 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The Court has reviewed 26 Plaintiff’s Complaint and other pleadings and finds that the issues he raises are not 27 complex. The Court understands Plaintiff’s claims and the relief sought. Plaintiff 28 3 3:16-cv-02462-BAS-NLS 1 has demonstrated he has a good grasp on litigation procedure, as evidenced by his 2 pleadings, motions, and other submissions, as well as his prior history as a litigant.3 3 Further, while the Court is sympathetic to Plaintiff’s medical issues, there is no 4 indication that they render him incapable of articulating his claim, which he has and 5 continues to articulate cogently.4 6 Plaintiff also argues counsel is needed to engage in discovery. See ECF No. 7 65 at 6, ¶ 2. Assistance with discovery does not necessarily amount to exceptional 8 circumstances. Wilborn, 789 F.2d at 1331 (“Most actions require development of 9 further facts during litigation and a pro se litigant will seldom be in a position to 10 investigate easily the facts necessary to support the case. If all that was required to 11 establish successfully the complexity of the relevant issues was a demonstration of 12 the need for development of further facts, practically all cases would involve 13 complex legal issues.”); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) 14 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court 15 denied appointment of counsel despite fact that pro se prisoner “may well have 16 fared better - particularly in the realm of discovery and the securing of expert 17 testimony,” because that is not the applicable test). Plaintiff has not demonstrated 18 that the circumstances of discovery in this case rise to the level of exceptional 19 circumstances warranting appointment of counsel. The second Wilborn factor is 20 not satisfied. 21 /// 22 23 24 25 26 27 28 3 Mr. Singleton has represented himself at least four previous times in this district (See, Case Nos. 3:03-cv-1610-WQH-BLM; 3:95-cv-3820-BTM-LSP; 3:99-cv2629-BTM-BEN; 3:12-cv-721-JAH-JLB); as well as at least twice in the Northern District (Case Nos. 5:02-cv-5458; 5:04-cv-869); and at least 3 times in the Central District (Case Nos. 2:09-cv-790; 2:06-cv-4531; 2:08-cv-5451). Plaintiff has also appealed rulings to the Ninth Circuit on 10 separate occasions. 4 To the extent Plaintiff asserts he requires counsel to “monitor his programming and prison interaction” because he is fearful of being physically harmed, Plaintiff fails to provide adequate support or explanation as to how appointment of counsel would affect his programming, interactions, or ability to articulate his claims. 4 3:16-cv-02462-BAS-NLS 1 III. CONCLUSION 2 For the foregoing reasons, the Court thus does not find the “exceptional 3 circumstances” required for appointment of counsel under 28 U.S.C. § 1915(e)(1). 4 Accordingly, Plaintiff’s request for appointment of counsel is DENIED. 5 IT IS SO ORDERED. 6 7 Dated: September 26, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3:16-cv-02462-BAS-NLS

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