Dawes v. The People of the State of California

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 WILLIAM DAWES, Case No.: 19-CV-2122-MMA-WVG 12 Plaintiff, ORDER ON MOTION TO APPOINT 13 v. COUNSEL 14 THE PEOPLE OF THE STATE OF CALIFORNIA, et al., [15] Defendants. [18] 19 Before the Court is William Dawes’ (“Plaintiff”) Motion to Appoint Counsel 20 (“Motion”). (Doc. No. 65.) Plaintiff seeks appointment of counsel, explaining Defendants 21 have denied him access to the law library and legal assistance in the course of this litigation. 22 Plaintiff adds that prisoners, like himself, have an interest in being free from “the unwanted 23 administration of antipsychotic drugs” and that “involuntary commitment to a mental 24 hospital is not within the terms of confinement in which a prison sentence subjects an 25 individual.” (Id. at 1 [citing Vitek v. Jones, 445 U.S. 480, 491-494 (1980)].) Having 26 reviewed and considered Plaintiff’s submission, the Court DENIES Plaintiff’s Motion [27] 1 without prejudice. 2 As a foundational matter, “there is no absolute right to counsel in civil proceedings.” 3 Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) 4 (internal citations omitted); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). 5 Concurrently, however, 28 U.S.C. section 1915 (e)(1) affords district courts discretion to 6 appoint counsel for indigent litigants if exceptional circumstances exist. Palmer v. Valdez, [7] 560 F.3d 965, 970 (9th Cir. 2009); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 8 “A finding of exceptional circumstances requires an evaluation of both the ‘likelihood of 9 success on the merits and the ability of the plaintiff to articulate [his] claims pro se in light 10 of the complexity of the legal issues involved.' Neither of these issues is dispositive and 11 both must be viewed together before reaching a decision.’” Meeks v. Nunez, 2017 WL 12 476425, at *2 (S.D. Cal. Feb. 6, 2017 (citing Wilborn v. Escalderon, 789 F.2d 1328 , 1331 13 (9th Cir. 1986)); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). 14 Here, the Court finds no exceptional circumstances warrant appointment of counsel, 15 particularly because the issues are not “so complex that due process violations will occur 16 absent the presence of counsel.” Bonin v. Vasquez, 999 F.2d 425 , 428–29 (9th Cir. 1993). 17 The February 4, 2020, First Amended Complaint is operative and demonstrates Plaintiff’s 18 ability to identify all institutional and individually named defendants and attribute specific 19 facts to each named defendant to plead due process claims. (Doc. No. 13.) The FAC 20 survived a challenge from the remaining defendants, H. Asbury, M. Zuniga, J. Ayala, I. 21 Bravo, O. Shelland (erroneously sued as Shellano), A. Silva, E. Solis, and J. Ugalde, 22 (collectively, “Defendants”) in this matter, when Defendants answered on December 18, 23 2020. (Doc. No. 30.) To that end, the docket reflects Plaintiff has capably filed a May 4, 24 2020, appeal to the Ninth Circuit, a July 20, 2021, Motion to Appeal Stay Order, as well 25 as the instant Motion. (Doc. Nos. 18, 52, 65.) Most recently, Plaintiff’s Motion to Appoint 26 Counsel properly cites to case law and clearly articulates Plaintiff’s request for relief. Thus, [27] 1 the Court considers Plaintiff’s self-representation to date to constitute evidence of 2 Plaintiff’s ability to sufficiently represent himself in these proceedings. 3 Further, the Court dismisses Plaintiff’s indigence as a basis for finding exceptional 4 circumstances. Indigence does not qualify as an exceptional circumstance in prisoner civil 5 rights cases. Montano v. Solomon, 2010 WL 2403389 , at *2 (E.D. Cal. June 11, 2010); 6 Callender v. Ramm, 2018 WL 6448536 , at *3 (E.D. Cal. Dec. 10, 2018). However 7 challenging litigating this action may be for Plaintiff, his obstacles are the same as those 8 faced by all other pro se prisoners. “Challenges conducting discovery and preparing for 9 trial ‘are ordinary for prisoners pursuing civil rights claim’ and cannot form the basis for 10 appointment of counsel.” Davis v. Allison, 2021 WL 2805820 , at *1 (E.D. Cal. July 6, 11 2021) (citing Courtney v. Kandel, 2020 WL 1432991 , at *1 (E.D. Cal. Mar. 24, 2020).). 12 Limited access to the law library and legal resources, as Plaintiff laments here, is similarly 13 unpersuasive because it is ordinarily incident to incarceration. McBride v. Servantes, 2016 14 WL 4793189 , at *1 (S.D. Cal. Sept. 14, 2016) (concluding “Plaintiff fails to demonstrate 15 an inability to represent himself beyond the ordinary burdens encountered by prisoners” in 16 arguing his limited law library access precludes him from effectively prosecuting his case). 17 Finally, the Court finds Plaintiff has not met his burden establishing the likelihood 18 of his success on the merits. Pursuant to presiding District Judge Michael M. Anello’s 19 February 6, 2023, Order, this action remains currently stayed pending related criminal 20 proceedings in state court. (Doc. No. 64.) Given the stay and because Plaintiff has not yet 21 survived a motion for summary judgment on the merits, there is no factual basis to convince 22 the Court that Plaintiff is likely to succeed on the merits. Arline v. Cornejo, 2023 WL 23 1453145, at *2 (S.D. Cal. Feb. 1, 2023) (citing See, e.g., Rios v. Paramo, 2016 WL 24 4248624, at *3 (S.D. Cal. Aug. 11, 2016).) Thus, appointment of counsel is not warranted 25 / / / 26 / / / [27] 1 this time and until Plaintiff meets his burden, as discussed herein. For the foregoing 2 reasons, the Court DENIES Plaintiff’s Motion. 3 IT IS SO ORDERED. 4 ||DATED: February 28, 2023 6 Hon. William V. Gallo 7 United States Magistrate Judge [27] 28 □ 19-CV-2122-MMA-WVG