Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Fosselman v. Tilton

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 10, 2008

JEROME FOSSELMAN, CDCR #H-66012, PLAINTIFF,
v.
JAMES TILTON, SECRETARY, CAL. DEPT. OF CORRECTIONS AND REHABILITATION; AND VICTOR M. ALMAGER, WARDEN; CANDIE COOK, MEDICAL APPEALS DEFENDANTS.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 18]; (2) GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO DEFENDANTS' MOTION TO DISMISS [Doc. No. 20]; (3) VACATING HEARING DATE Coordinator; Dr. CUMMINGS, Dentist, AND SUBMITTING DEFENDANTS' MOTION TO DISMISS COMPLAINT PURSUANT

TO FED.R.CIV.P. 12(b)(6) FOR DECISION WITHOUT ORAL ARGUMENT PURSUANT TO S.D.CAL.CIVLR7.1.d.1

Jerome Fosselman ("Plaintiff"), a prisoner currently incarcerated at Centinela State Prison in Imperial, California, and proceeding pro se, has been granted leave to proceed in forma pauperis ("IFP") in this civil rights action filed pursuant to 42 U.S.C. § 1983.

On March 17, 2008, Defendants filed a Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 16]. That Motion was set for hearing before this Court on May 5, 2008.*fn1 Plaintiff has since filed both a Motion for Appointment of Counsel [Doc. No. 18], as well as a Motion for Extension of Time to File an Opposition to Defendants' Motion to Dismiss [Doc. No. 20].

I. MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff requests appointment of counsel because his "intellectual functioning is in the borderline range, and although he is not mentally retarded, his cognitive skills are generally deficient." See Pl.'s Mot. [Doc. No. 18] at 3. Plaintiff claims to have limited access to the law library, and while he has been helped by fellow inmates in the past, "[w]ithout the honorable court's intervention ... he will be left on his own." Id.

"There is no constitutional right to appointed counsel in a § 1983 action." Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); see also Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) ("[T]here is no absolute right to counsel in civil proceedings.") (citation omitted). Thus, federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).

Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to "request" that an attorney represent indigent civil litigants upon a showing of "exceptional circumstances."

See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525. "A finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims 'in light of the complexity of the legal issues involved.'" Agyeman, 390 F.3d at 1103(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

The Court agrees that any pro se litigant "would be better served with the assistance of counsel." Rand, 113 F.3d at 1525 (citing Wilborn, 789 F.2d at 1331). However, so long as a pro se litigant, like Plaintiff in this case, is able to "articulate his claims against the relative complexity of the matter," the "exceptional circumstances" which might require the appointment of counsel do not exist. Id. (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner "may well have fared better-particularly in the realms of discovery and the securing of expert testimony.").

The Court finds that Plaintiff's Complaint involves relatively straightforward Eighth Amendment claims related to his dental care and demonstrates his ability to articulate the facts supporting his claims. Therefore, neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. For these reasons, the Court finds Plaintiff's Motion for Appointment of Counsel must be denied.

II. MOTION FOR EXTENSION OF TIME

Plaintiff's also requests an extension of time in which to file an Opposition to Defendants' Motion to Dismiss because he is a pro se litigant with a learning deficiency who is "only allowed law library access for two hours a week" and "[f]our hours with an established court deadline." See Pl.'s Mot. [Doc. No. 20] at 2.

This is Plaintiff's first request for an extension of time, and his request is timely. Moreover, because the Court has found no exceptional circumstances support appointment of counsel in this matter, he is still proceeding in pro se. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (court has a "duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ... technical procedural requirements.").

Thus, the Court finds good cause to grant Plaintiff's request. "'Strict time limits ... ought not to be insisted upon' where restraints resulting from a pro se prisoner plaintiff's incarceration prevent timely compliance with court deadlines." Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (citing Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967); see also Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000) (reversing district court's dismissal of prisoner's amended pro se complaint as untimely where mere 30-day delay was result of prison-wide lockdown).

III. CONCLUSION AND ORDER

For the reasons set forth above, the Court hereby:

1) DENIES without prejudice Plaintiff's Motion for Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1) [Doc. No. 18]; and

2) GRANTS Plaintiff's Motion for Extension of Time to File an Opposition to Defendants' Motion to Dismiss [Doc. No. 20]. Plaintiff shall have until Monday, June 9, 2008, to file his Opposition, and Defendants shall have until Monday, June 16, 2008, to file a Reply.

IT IS FURTHERED ORDERED that the date of Monday, May 5, 2008, previously set for hearing of Defendants' Motion to Dismiss [Doc. No. 16], is hereby VACATED. Defendants' Motion to Dismiss Plaintiff's Complaint pursuant to FED.R.CIV.P. 12(b)(6) shall be considered submitted as of Monday June 23, 2008, and the Court shall enter a decision on the papers at that time without holding any oral argument. See S.D. CAL. CIVLR 7.1.d.1.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.