Dickey v. Strayhorn et al

Filing 20

ORDER Denying Plaintiff's 15 Second Motion to Appoint Counsel. It is ordered that this denial is without prejudice, however, and Plaintiff is therefore not precluded from requesting the appointment of counsel at a later stage in this case, should he be able to make the requisite showing of exceptional circumstances at that time. Signed by Magistrate Judge Jill L. Burkhardt on 7/21/2017. (All non-registered users served via U.S. Mail Service)(dxj)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

SOUTHERN DISTRICT OF CALIFORNIA

8
9

GARY DICKEY,
Plaintiff,

10
11
12

Case No.: 17-cv-546 JLS (JLB)
ORDER DENYING PLAINTIFF’S
SECOND MOTION TO APPOINT
COUNSEL

v.
D. STRAYHORN and D. PARAMO,

13

Defendants.

[ECF No. 15]

14
15

On July 10, 2017, Plaintiff filed with the Court a motion for appointment of counsel.

16

(ECF No. 15.) This is Plaintiff’s second motion for appointment of counsel. (See ECF

17

No. 6.) Having reviewed Plaintiff’s request for counsel in conjunction with the case record,

18

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

19

the Court to appoint him counsel at this time. Accordingly, Plaintiff’s motion is DENIED

20

without prejudice.

21

I.

LEGAL STANDARD

22

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

23

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

24

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

25

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

26

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

27

390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom., Gerber v. Agyeman, 545 U.S.

28

1128 (2005)). “When determining whether ‘exceptional circumstances’ exist, a court must
1
17-cv-546 JLS (JLB)

1

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

2

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

3

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

4

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

5

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

6

II.

Neither of these

DISCUSSION

7

A.

8

Plaintiff’s complaint alleges claims of excessive force in violation of the Eighth

9

Amendment’s prohibition against cruel and unusual punishment. (ECF No. 1.) Plaintiff

10

alleges that Defendant Strayhorn, a clinic officer at the R.J. Donovan Correctional Facility

11

where Plaintiff is incarcerated, used excessive force when he handcuffed Plaintiff,

12

slammed Plaintiff to the ground, and then kicked Plaintiff above his right eye with his

13

steel-toed boot without provocation. (Id. at 3–7.) Plaintiff alleges that Defendant Paramo,

14

Warden of the R.J. Donovan Correctional Facility, violated his Eighth Amendment rights

15

when he allowed Defendant Strayhorn to injure him in the way described above. (Id. at

16

2.)

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

17

When a prison guard stands accused of using excessive force in violation of the

18

Eighth Amendment, “the core judicial inquiry is . . . whether force was applied in a good-

19

faith effort to maintain or restore discipline, or maliciously and sadistically to cause

20

harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). In analyzing an Eighth Amendment

21

excessive force claim, courts consider the following factors: (1) the need for application

22

of force; (2) the relationship between the need and the amount of force used; (3) the extent

23

of the injury inflicted; (4) the threat “reasonably perceived by the responsible officials”;

24

and (5) “any efforts made to temper the severity of a forceful response.” Id.

25

To demonstrate that he has a likelihood of success at trial, Plaintiff must do more

26

than merely allege that one of his constitutional rights was violated. He must provide

27

evidence to the effect that he has a likelihood of success on the merits of his allegations.

28

See Torbert v. Gore, No. 14-cv-2991 BEN (NLS), 2016 WL 1399230, at *1 (S.D. Cal.
2
17-cv-546 JLS (JLB)

1

Apr. 8, 2016) (“A plaintiff that provides no evidence of his likelihood of success at trial

2

fails to satisfy the first factor of the [exceptional circumstances] test.”). Here, as discussed

3

in the Court’s order denying Plaintiff’s first motion for appointment of counsel (see ECF

4

No. 13), Plaintiff has not offered evidence that supports a likelihood of success on the

5

merits of the allegations made in his complaint. Although the medical report that Plaintiff

6

attached to his complaint is some evidence of the severity of the injury that Plaintiff

7

suffered (ECF No. 1 at 19), the Court has no evidence before it as to how Plaintiff was

8

injured in general, much less evidence specifically relating to the other factors relevant to

9

an excessive force claim, such as any threat that Defendant Strayhorn reasonably

10

perceived and any need for the application of force under the circumstances.1 Without

11

such evidence, the Court cannot make a determination that the force Defendant Strayhorn

12

used on Plaintiff, if any, was not applied in a good-faith effort to maintain or restore

13

discipline but was instead applied maliciously and sadistically to cause harm. See

14

Hudson, 503 U.S. at 7. Thus, as previously explained to Plaintiff, at this early stage of

15

the case where Defendants have not yet filed a response to Plaintiff’s complaint and the

16

parties have not yet engaged in discovery, the Court cannot find that Plaintiff is likely to

17

succeed on the merits of his claim. See Garcia v. Smith, No. 10-cv-1187 AJB (RBB),

18

2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) (denying motion for appointment of

19

counsel when it was too early to determine whether any of plaintiff’s claims would

20

survive a motion for summary judgment).

21

For the reasons above, the Court concludes that Plaintiff fails to satisfy the first

22

“exceptional circumstances” factor that would support his request for counsel.

23

///

24

///

25
26
1

27
28

Plaintiff admits in the complaint to calling Defendant Strayhorn names and to standing up to face
Defendant Strayhorn when he approached Plaintiff. (ECF No. 1 at 3–7.) Thus, without any evidence as
to the extent of Plaintiff’s actions toward Defendant Strayhorn, the Court cannot make a determination as
to whether any threat that Plaintiff made against Defendant Strayhorn, if any, was perceived reasonably.
3
17-cv-546 JLS (JLB)

1

B.

2

Plaintiff argues in his motion that he should be appointed counsel because he “take[s]

3

a lot of psych medication for his mental health problems” and is “not stable enough to

4

defendant himself, especial[l]y against a professional like the DA.” (ECF No. 15 at 1.)

5

Plaintiff states that he has “been taking medication since the age of 13 years and in and out

6

of hospitals for suicidal attempts on [his] life.” (Id.) While the Court is sympathetic to

7

Plaintiff’s situation, this factor, on its own and without a showing that Plaintiff is likely to

8

succeed on the merits of his claims, is insufficient to demonstrate the type of exceptional

9

circumstances that would necessitate the appointment of counsel. The Court has reviewed

10

Plaintiff’s complaint and other filings on the docket and finds that any mental disability

11

from which Plaintiff may suffer has not prevented him from effectively communicating

12

with the Court. Plaintiff’s filings thus far are well written, organized, and clear, and the

13

Court is able to understand Plaintiff’s claims and the relief that he seeks. In addition, this

14

case is not extraordinarily complex. It involves excessive force Eighth Amendment claims

15

against two defendants, and the facts are fairly straightforward. Thus, Plaintiff has shown

16

that despite any mental disability that he may suffer, he has been able to articulate his

17

claims in light of the complexity of his case.

Plaintiff’s Ability to Articulate Claims Without the Assistance of Counsel

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

circumstances that might support the appointment of counsel do not exist.
4
17-cv-546 JLS (JLB)

1

III.

CONCLUSION

2

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

3

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

4

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

5

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

6

and Plaintiff’s second motion for appointment of counsel (ECF No. 15) is DENIED. This

7

denial is without prejudice, however, and Plaintiff is therefore not precluded from

8

requesting the appointment of counsel at a later stage in this case, should he be able to

9

make the requisite showing of exceptional circumstances at that time.

10
11

IT IS SO ORDERED.
Dated: July 21, 2017

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
17-cv-546 JLS (JLB)