Jackson v. Paramo et al

Filing 79

ORDER Denying Motion for Appointment of Counsel [ECF. No. 78 ]. Signed by Magistrate Judge Barbara Lynn Major on 10/11/2018. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17CV882-CAB (BLM)

DUWAYNE JACKSON,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Plaintiff,

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v.

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D. PARAMO, et al.,

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[ECF NO. 78]
Defendants.

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On September 24, 2018, Plaintiff submitted a motion for appointment of counsel that was

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accepted by the Court on discrepancy on October 10, 2018. See ECF Nos. 77 and 78. Plaintiff

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argues that counsel should be appointed in part because he “has a serious mental illness and a

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high risk of decompensation, depression, anxiety, bipolar disorder, which may result into a

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mental health hospital at times.” ECF No. 78 at 2. In support of his claim, Plaintiff attaches

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records from the Department of Corrections and Rehabilitation and the Office of Administrative

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Hearings for the State of California. Id. at 11 - 21. Plaintiff further argues that counsel should

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be appointed because (1) his case is complex, (2) his case requires medical experts, (3) the

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parties have demanded a jury trial, (4) discovery will be required, (5) the parties will have

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differing positions, (6) he only has a junior high school education and no legal education, (7) he
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has limited access to legal materials due to his placement in the Administrative Segregation Unit

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and no ability to investigate his case, and (8) he is indigent. Id. at 3-4 and 6-8.

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A. Appointment of Counsel

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The Constitution provides no right to appointment of counsel in a civil case unless an

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indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep’t of Soc.

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Servs., 452 U.S. 18, 25 (1981). However, under 28 U.S.C. § 1915(e)(1), courts are granted

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discretion to appoint counsel for indigent persons under “exceptional circumstances.” Agyeman

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v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004).

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circumstances demands at least “an evaluation of the likelihood of the plaintiff’s success on the

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merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity

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of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986)).

A finding of exceptional

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B. Competency

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In Allen v. Calderon, 408 F.3d 1150, 1153-54 (9th Cir. 2005)1, the Ninth Circuit Court of

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Appeals explained that a district court must hold a competency hearing “when substantial

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evidence of incompetence is presented.” Allen, 408 F.3d at 1153. If a competency hearing is

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warranted, the Court may appoint counsel for the limited purpose of representing the petitioner

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at the competency hearing. Id. (citing Rule 8(c) of the Rules Governing Section 2254 Cases

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(“[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a

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petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A”)). In determining

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whether Petitioner has presented “substantial evidence of incompetence,” the Court may

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consider any appropriate evidence including sworn declarations by Petitioner or other inmates,

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sworn declarations or letters from treating or prison psychiatrists or psychologists, and relevant

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While Allen was written in the context of a habeas case, it has been applied in cases under
section 1983. See Tran v. Gore, 2013 WL 692089, *3 (S.D. Cal. Feb. 25, 2013) (citing McElroy
v. Cox, 2009 WL 4895360, *3 (E.D. Cal. Dec. 11, 2009) (a § 1983 case where “Judge Battaglia
applied Allen and found that there was no nexus between Plaintiff's mental disorder and his
ability to articulate his claims.”).
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medical records. Allen, 408 F.3d at 1151-53.

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C. Discussion

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The Court has reviewed all of the documents filed by Plaintiff in this case including the

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instant motion, the complaint (ECF No. 1), a motion to proceed in forma pauperis (ECF No. 2),

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a prisoner trust fund account statement (ECF No. 3), a prisoner trust fund certification (ECF No.

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4), several notices of change of address (ECF Nos. 5, 16, 17, and 38), the First Amended

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Complaint (ECF No. 11), a previous motion for appointment of counsel (ECF No. 9), a motion

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for temporary restraining order (ECF No. 13), motion for default judgment (ECF No. 23), several

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oppositions to Defendants’ various motions to dismiss (ECF Nos. 28, 58, 71, and 72), a

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supplemental exhibit to the opposition (ECF No. 30), a motion for judgment on the proceedings

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(ECF No. 35), the Second Amended Complaint (ECF No. 37), a motion for order directing

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California State Prisons in Los Angeles County to Stop Disapproval of Mailing Legal Documents

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(ECF No. 48), a motion for extension of time to oppose Defendants’ motion to dismiss (ECF No.

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53), two motions for a pre-trial conference of settlement (ECF Nos. 61 and 66), and a proposed

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subpoena (ECF No. 74). From the Court’s review of these documents, it is clear that Plaintiff is

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able to articulate the claims of his case without legal assistance. Under such circumstances, a

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district court does not abuse its discretion in denying a state prisoner’s request for appointment

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of counsel as it is simply not warranted by the interests of justice. See LaMere v. Risley, 827

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F.2d 622, 626 (9th Cir. 1987) (affirming district court’s denial of request for appointment of

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counsel where pleadings demonstrated petitioner had “a good understanding of the issues and

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the ability to present forcefully and coherently his contentions”). The Court previously denied

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Plaintiff’s request for counsel [see ECF No. 14] and Plaintiff’s current request does not provide

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any new facts justifying such an extraordinary remedy. See ECF No. 78. Further, Plaintiff has

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not demonstrated a likelihood of success on the merits such that his case should be classified

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as an “exceptional circumstance[].” Agyeman, 390 F.3d at 1103; see also Wilborn, 789 F.2d at

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1331

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It is unclear if Plaintiff is requesting the appointment of counsel on the ground that he is

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incompetent due to a mental illness or disability. While Plaintiff has provided evidence of a
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psychiatric condition, the evidence establishes the condition is being controlled with medication

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(at least through August 15, 2019). See ECF No. 78 at 19-21. Plaintiff has not submitted the

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required “substantial evidence” of incompetence to warrant a competency hearing. Plaintiff

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does not allege that the mental illness he suffers from prevents him from understanding and

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responding to court orders. Additionally, the Court’s review of Plaintiff’s filings in this matter

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does not support such a position. Accordingly, the Court finds there is no basis for a competency

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hearing and therefore no need to appoint counsel to participate in that hearing.

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Because Plaintiff has not alleged the requisite “exceptional circumstances,” the Court
DENIES without prejudice Plaintiff’s request for appointment of counsel.
IT IS SO ORDERED.

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Dated: 10/11/2018

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