Marten v. Halawa Correctional Facility et al

Filing 85

AMENDED ORDER Denying Marten's Motion For A Continuance And For Court-Appointed Pro Bono Counsel re 83 The court GRANTS Marten's request to continue the hearing on Defendant's Motion for Summary Judgment. The heari ng is now scheduled for June 20, 2024 at 10:00 a.m.Marten's Opposition to the Defendants' Motion for Summary Judgment is due on May 30, 2024.To the extent Marten seeks a continuance of trial, the court DENIES the request to continue trial at this time, without prejudice to revisiting this matter at a later date. How the court rules on the pending summary judgment motion may affect any future request.The court DENIES Marten's request for court-appointed pro bono counsel because Marten has not established in forma pauperis status. Signed by JUDGE SUSAN OKI MOLLWAY on 5/13/2024. (cib)COURTS CERTIFICATE OF SERVICE - Non-Registered CM/ECF Participants have been serv ed by First Class Mail to the addresses of record listed on the (NEF). Pro Se (Non-Prisoner) Litigants that have consented to receive documents and Notices of Electronic Filings by email, have been served electronically at the e-mail address listed on the (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHAYNE MICAEL MARTEN,
Plaintiff,
vs.
MOANIKEALA CUMMINGS AND
TINA AGARAN,
Defendants.

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CIVIL NO. 22-00393 SOM-WRP
AMENDED ORDER DENYING
MARTEN’S MOTION FOR A
CONTINUANCE AND FOR COURTAPPOINTED PRO BONO COUNSEL

AMENDED ORDER GRANTING IN PART AND DENYING IN PART MARTEN’S
MOTION FOR A CONTINUANCE AND FOR COURT-APPOINTED
PRO BONO COUNSEL
Before the court is pro se Plaintiff Chayne Michael
Marten’s Motion seeking (1) a continuance, (2) an order that
Defendants Moanikeala Cummings and Tina Agaran provide him
documents filed under seal in support of their Motion for
Summary Judgment, (3) and an order appointing pro bono counsel.
ECF No. 83.
For reasons discussed herein, the court grants in part
and denies in part Marten’s Motion.
I.

BACKGROUND.
The factual and procedural background for this case

was set forth in the court’s Order of January 23, 2023, ECF No.
19.

That background is incorporated by reference.
Relevant to Marten’s instant motion, on April 30,

2024, Defendants moved to file under seal a memorandum in
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support, a concise statement of material facts, and exhibits
related to a then-forthcoming motion for summary judgment.
No. 73.

ECF

On May 3, the magistrate judge assigned to this case

mailed Marten a copy of his order granting Defendants’ motion.
ECF No. 74.

That same day, Defendants filed their Motion for

Summary Judgment; redacted versions of their Memorandum in
Support, Concise Statement of Material Fact, and Exhibits; and
unredacted versions of these documents under seal.

ECF Nos. 75,

76, 77, 78 (sealed), 79 (sealed).
On May 10, the court received Marten’s instant motion,
which he appears to have drafted on May 5. ECF No. 83, PageID
# 532.

In this motion, Marten requests a ninety-day continuance

of trial in order to obtain the documents that the Defendants
moved to file under seal, to reply to the Defendant’s Motion for
Summary Judgment, and to prepare for trial.
# 530.

Id. at PageID

He also requests that the court appoint pro-bono counsel

for him.

Id. at PageID # 531.

II.

DISCUSSION.
A.

Request for a Continuance.

The court construes Marten’s motion for a continuance
of trial to be a request for a continuance of the hearing on
Defendants’ Motion for Summary Judgment, scheduled for June 12,
2024.

See ECF No. 80.

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In the intervening time between Marten’s drafting of
the instant motion (May 5) and its filing with the court (May
10), Defendants served Marten via U.S. mail with the sealed
documents in issue. ECF No. 81 (Certificate of Service entered
on May 6, 2024).

Marten should now be or will shortly be in

possession of the documents.
The court is aware that Marten’s receipt of documents
served via U.S. mail will be delayed given the realities of
prison administration.

Therefore, the court grants the request

to continue the hearing by one week.
June 20, 2024, at 10:00 a.m.

The new hearing date is

Marten’s Opposition to the

Defendants’ Motion for Summary Judgment is due on May 30, 2024.
To the extent Marten seeks a trial continuance, he
does not explain why a continuance is needed.

There may well be

reasons to continue the trial, which Marten may bring to the
court’s attention in a subsequent motion.
B.

Appointment of Counsel.

“Generally, a person has no right to counsel in civil
actions.”

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)

(citation omitted).

Nevertheless, the court “may under

‘exceptional circumstances’ appoint counsel for indigent civil
litigants pursuant to 28 U.S.C. § 1915(e)(1).”

Id.

In

determining whether “exceptional circumstances” exist, the court
must consider a litigant’s “likelihood of success on the merits”
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as well as the litigant’s ability “to articulate his claims pro
se in light of the complexity of the legal issues involved.” Id.
(citation and internal quotations omitted).
Here, the magistrate judge has denied Marten’s
requests for the appointment of civil pro bono counsel because
Marten’s application for in forma pauperis status was denied and
he is thus not eligible for court-appointed civil counsel under
§ 1915(e)(1).

ECF Nos. 82, 70.

magistrate judge’s conclusion.

This court agrees with the
See, e.g., Loftus v. H&R Block,

No. 20-00568 JMS-KJM, 2021 WL 6497511, at *2 (D. Haw. Jan. 20,
2021); Hopkins v. Rsch. Corp., No. CV 19-00054 JMS-KJM, 2019 WL
1292290, at *2 (D. Haw. Mar. 20, 2019).

If Marten’s

circumstances have changed such that he believes he is now
eligible for in forma pauperis status, he may submit a new in
forma pauperis application and a new request for counsel.
III.

CONCLUSION.
The court GRANTS Marten’s request to continue the

hearing on Defendant’s Motion for Summary Judgment.

The hearing

is now scheduled for June 20, 2024 at 10:00 a.m.
Marten’s Opposition to the Defendants’ Motion for
Summary Judgment is due on May 30, 2024.
To the extent Marten seeks a continuance of trial, the
court DENIES the request to continue trial at this time, without
prejudice to revisiting this matter at a later date.
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How the

court rules on the pending summary judgment motion may affect
any future request.
The court DENIES Marten’s request for court-appointed
pro bono counsel because Marten has not established in forma
pauperis status.
IT IS SO ORDERED.
DATED:

Honolulu, Hawai‘i, May 13, 2024.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Marten v. Cummings et al., Civ. No. 22-00393 SOM-WRP; AMENDED
ORDER GRANTING IN PART AND DENYING IN PART MARTEN’S MOTION FOR A
CONTINUANCE AND FOR COURT-APPOINTED PRO BONO COUNSEL.

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