Hearn v. Warden et al

Filing 76

Order on objections regarding appointed counsel and third amended complaint. Signed by District Judge Andrew G. Schopler on 5/8/2024. (All non-registered users served via U.S. Mail Service) (smf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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William HEARN,

Case No.: 22-cv-0255-AGS-DDL
Plaintiff,

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v.

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RJD WARDEN, et al.,

ORDER ON OBJECTIONS
REGARDING APPOINTED
COUNSEL AND THIRD AMENDED
COMPLAINT (ECF 72)

Defendants.

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The magistrate judge denied plaintiff William Hearn’s third motion to appoint

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counsel and motion to file a third amended complaint. (ECF 63, 65.) Plaintiff objected.

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(ECF 72.) A district judge may “reconsider any pretrial matter” when “it has been shown

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that the magistrate judge’s order is clearly erroneous or contrary to law.” 28 U.S.C.

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§ 636(b)(1)(A). “[T]here is no absolute right to counsel in civil proceedings,” Hedges v.

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Resolution Tr. Corp., 32 F.3d 1360, 1363 (9th Cir. 1994), so the magistrate judge’s denial

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was not contrary to law. And the clearly erroneous standard is very high: “the district court

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can overturn the magistrate judge’s ruling only if the district court is left with the definite

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and firm conviction that a mistake has been made.” Computer Econ., Inc. v. Gartner Grp.,

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50 F. Supp. 2d 980, 983 (S.D. Cal. 1999).

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To appoint counsel, plaintiff must show “exceptional circumstances.” Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances

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requires an evaluation of both the likelihood of success on the merits and the ability of the

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petitioner to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Id. (cleaned up).

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Because the case is still in its infancy, the magistrate judge correctly determined that

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“it is simply too soon to predict Plaintiff’s likelihood of success on the merits.” (ECF 71,

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at 3.) In his objection, Hearn sets out a laundry list of circumstances he argues are

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exceptional: “[p]laintiff’s limited education,” his “mental illness,” his “hearing

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impairment,” his inability “to interview witness[es],” his inability “to view video footage,”
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his “reading” and “writing difficulties,” his “lack of access to inmate legal assistants,” and

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his “on-going transfers.” (ECF 72, at 2.) But Hearn offers no evidence of the extent of his

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education, mental illness, or other impairments. (See, e.g., ECF 61, at 1–2.) And the fact

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that his incarceration makes discovery or the review of evidence more difficult is not an

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exceptional circumstance. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)

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(denying a finding of exceptional circumstances because “[m]ost actions require

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development of further facts during litigation and a pro se litigant will seldom be in a

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position to investigate easily the facts necessary to support the case”); Suarez v. Clark, No.

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122CV00160JLTSABPC, 2024 WL 477982, at *1 (E.D. Cal. Jan. 25, 2024) (“[T]he Court

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has repeatedly held incarceration’s challenges on litigation do not constitute an exceptional

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circumstance.”). More importantly, the Court agrees with the magistrate judge’s

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conclusion that Hearn has so far demonstrated his ability to articulate his claims, which do

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not appear complex, by “successfully fil[ing] three iterations of his complaint” and

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amending his complaint to “identify two former Doe Defendants by name.” (ECF 71, at 3.)

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Hearn’s objection to the denial of appointed counsel is overruled.

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Hearn’s objection to the denial of his motion to amend the complaint fares no better.

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The magistrate judge noted that “the court should freely give leave to amend a pleading

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when justice so requires,” and credited the leniency provided to unrepresented plaintiffs.

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(ECF 71, at 4 (quoting Fed. R. Civ. P. 15(a)(2)).) But the magistrate judge also correctly

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pointed out that despite the “extreme liberality” courts apply, amendment should be denied

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when it “would cause prejudice to the opposing party, is sought in bad faith, is futile, or

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creates undue delay.” (Id. (first quoting Moss v. United States Secret Serv., 572 F.3d 962,

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972 (9th Cir. 2009), then quoting Yakama Indian Nation v. State of Wash. Dep’t of

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Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999).)

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Five months ago, Hearn filed a second amended complaint and then—before newly

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named defendants were served—moved to file a third amended complaint. (See ECF 53,

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65.) The magistrate judge reasonably found that “[a]llowing Plaintiff to file a third

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amended complaint before the newly named Defendants have been served . . . would
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require service by the [U.S. Marshals Service] . . . to restart.” (ECF 71, at 5.) And now,

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even though waivers of service of the second amended complaint have been filed, the

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magistrate judge was correct in finding that “amending the complaint before all Defendants

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have had a chance to respond to the Second Amended Complaint may prove to be futile.”

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(Id.) So the magistrate judge did not err in denying Hearn’s motion for leave to amend as

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“premature” since allowing as much would “likely result in delay of the case.” (Id.) Hearn’s

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objections are overruled.

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Dated: May 8, 2024

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______________________
Hon. Andrew G. Schopler
United States District Judge

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