Dickey v. Strayhorn et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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GARY DICKEY,
Plaintiff,
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Case No.: 17-cv-546 JLS (JLB)
ORDER DENYING PLAINTIFF’S
SECOND MOTION TO APPOINT
COUNSEL
v.
D. STRAYHORN and D. PARAMO,
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Defendants.
[ECF No. 15]
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On July 10, 2017, Plaintiff filed with the Court a motion for appointment of counsel.
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(ECF No. 15.) This is Plaintiff’s second motion for appointment of counsel. (See ECF
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No. 6.) Having reviewed Plaintiff’s request for counsel in conjunction with the case record,
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and for the reasons below, the Court concludes that Plaintiff fails to meet the criteria for
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the Court to appoint him counsel at this time. Accordingly, Plaintiff’s motion is DENIED
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without prejudice.
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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
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A.
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Plaintiff’s complaint alleges claims of excessive force in violation of the Eighth
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Amendment’s prohibition against cruel and unusual punishment. (ECF No. 1.) Plaintiff
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alleges that Defendant Strayhorn, a clinic officer at the R.J. Donovan Correctional Facility
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where Plaintiff is incarcerated, used excessive force when he handcuffed Plaintiff,
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slammed Plaintiff to the ground, and then kicked Plaintiff above his right eye with his
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steel-toed boot without provocation. (Id. at 3–7.) Plaintiff alleges that Defendant Paramo,
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Warden of the R.J. Donovan Correctional Facility, violated his Eighth Amendment rights
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when he allowed Defendant Strayhorn to injure him in the way described above. (Id. at
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2.)
Plaintiff’s Likelihood of Success on the Merits of His Claim
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When a prison guard stands accused of using excessive force in violation of the
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Eighth Amendment, “the core judicial inquiry is . . . whether force was applied in a good-
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faith effort to maintain or restore discipline, or maliciously and sadistically to cause
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harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). In analyzing an Eighth Amendment
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excessive force claim, courts consider the following factors: (1) the need for application
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of force; (2) the relationship between the need and the amount of force used; (3) the extent
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of the injury inflicted; (4) the threat “reasonably perceived by the responsible officials”;
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and (5) “any efforts made to temper the severity of a forceful response.” Id.
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To demonstrate that he has a likelihood of success at trial, Plaintiff must do more
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than merely allege that one of his constitutional rights was violated. He must provide
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evidence to the effect that he has a likelihood of success on the merits of his allegations.
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See Torbert v. Gore, No. 14-cv-2991 BEN (NLS), 2016 WL 1399230, at *1 (S.D. Cal.
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Apr. 8, 2016) (“A plaintiff that provides no evidence of his likelihood of success at trial
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fails to satisfy the first factor of the [exceptional circumstances] test.”). Here, as discussed
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in the Court’s order denying Plaintiff’s first motion for appointment of counsel (see ECF
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No. 13), Plaintiff has not offered evidence that supports a likelihood of success on the
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merits of the allegations made in his complaint. Although the medical report that Plaintiff
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attached to his complaint is some evidence of the severity of the injury that Plaintiff
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suffered (ECF No. 1 at 19), the Court has no evidence before it as to how Plaintiff was
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injured in general, much less evidence specifically relating to the other factors relevant to
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an excessive force claim, such as any threat that Defendant Strayhorn reasonably
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perceived and any need for the application of force under the circumstances.1 Without
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such evidence, the Court cannot make a determination that the force Defendant Strayhorn
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used on Plaintiff, if any, was not applied in a good-faith effort to maintain or restore
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discipline but was instead applied maliciously and sadistically to cause harm. See
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Hudson, 503 U.S. at 7. Thus, as previously explained to Plaintiff, at this early stage of
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the case where Defendants have not yet filed a response to Plaintiff’s complaint and the
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parties have not yet engaged in discovery, the Court cannot find that Plaintiff is likely to
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succeed on the merits of his claim. See Garcia v. Smith, No. 10-cv-1187 AJB (RBB),
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2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) (denying motion for appointment of
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counsel when it was too early to determine whether any of plaintiff’s claims would
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survive a motion for summary judgment).
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For the reasons above, the Court concludes that Plaintiff fails to satisfy the first
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“exceptional circumstances” factor that would support his request for counsel.
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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.
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B.
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Plaintiff argues in his motion that he should be appointed counsel because he “take[s]
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a lot of psych medication for his mental health problems” and is “not stable enough to
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defendant himself, especial[l]y against a professional like the DA.” (ECF No. 15 at 1.)
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Plaintiff states that he has “been taking medication since the age of 13 years and in and out
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of hospitals for suicidal attempts on [his] life.” (Id.) While the Court is sympathetic to
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Plaintiff’s situation, this factor, on its own and without a showing that Plaintiff is likely to
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succeed on the merits of his claims, is insufficient to demonstrate the type of exceptional
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circumstances that would necessitate the appointment of counsel. The Court has reviewed
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Plaintiff’s complaint and other filings on the docket and finds that any mental disability
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from which Plaintiff may suffer has not prevented him from effectively communicating
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with the Court. Plaintiff’s filings thus far are well written, organized, and clear, and the
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Court is able to understand Plaintiff’s claims and the relief that he seeks. In addition, this
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case is not extraordinarily complex. It involves excessive force Eighth Amendment claims
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against two defendants, and the facts are fairly straightforward. Thus, Plaintiff has shown
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that despite any mental disability that he may suffer, he has been able to articulate his
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claims in light of the complexity of his case.
Plaintiff’s Ability to Articulate Claims Without the Assistance of Counsel
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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 claims 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 claims
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in 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 claims 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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and Plaintiff’s second motion for appointment of counsel (ECF No. 15) is DENIED. This
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denial is without prejudice, however, and Plaintiff is therefore not precluded from
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requesting the appointment of counsel at a later stage in this case, should he be able to
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make the requisite showing of exceptional circumstances at that time.
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IT IS SO ORDERED.
Dated: July 21, 2017
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