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Richard Garcia, Cdcr # T-77914 v. C.D.C.R.


February 5, 2013

C.D.C.R., ET AL.,

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


Plaintiff, a state prisoner currently incarcerated at California State Prison--Los Angeles County ("CSP-LAC"), in Lancaster, California, is proceeding pro se and in forma pauperis with this civil action filed pursuant to 42 U.S.C. § 1983. Plaintiff alleges his rights to adequate medical care, due process, and to be free of cruel and unusual punishment were violated while he was an inmate at Centinela State Prison in 2011. See Compl. [ECF No. 1] at 1-6.

I. Procedural Background

On November 30, 2012, Defendants filed a Motion to Dismiss pursuant to FED.R.CIV.P. 12(b) and 12(b)(6) [ECF No. 13]. Because Defendants move to dismiss, in part, based on Plaintiff's alleged failure to exhaust available administrative remedies prior to suit pursuant to 42 U.S.C. § 1997e(a), the Court provided Plaintiff with notice and an opportunity to develop the record regarding exhaustion. See Dec. 20, 2012 Order [ECF No. 14] at 1-2 (citing Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003)). Plaintiff was directed to file and serve his opposition, including evidentiary materials related to exhaustion, by January 14, 2013. Defendants were ordered to reply by January 22, 2013, and the Motion was set for hearing without oral argument as submitted on January 28, 2013. Id.

II. Plaintiff's Pending Motions

On January 30, 2013,*fn1 however, Plaintiff submitted a Motion to Appoint Counsel [ECF No. 18], accompanied by a Motion to Stay Defendants' Motion to Dismiss and "expansion of time." [ECF No. 16].

A. Motion for Appointment of Counsel

"[T]here is no absolute right to counsel in civil proceedings." Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (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). "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.'" Id. (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).

No doubt most pro se litigants "find it difficult to articulate [their] claims," and would be better served with the assistance of counsel. Wilborn, 789 F.2d at 1331. For this reason, in the absence of counsel, federal courts employ procedures which are highly protective of a pro se litigant's rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, so long as a pro se litigant, is able to "articulate his claims" in light of the relative complexity of the matter, the "exceptional circumstances" which might require the appointment of counsel do not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

Here, Plaintiff requests counsel on grounds that he is indigent, has only a "5.3 grade point level," has been proceeding thus far with the help of another inmate, and has limited access to the law library. See Pl.'s Mot. [ECF No. 18] at 1-2. However, these circumstances are typical of almost every pro se prisoner civil rights cases, and alone are insufficient to demonstrate the type of "exceptional" circumstances which are necessary to justify the appointment of counsel under Wilborn and its progeny. In fact, Plaintiff has shown that he has a good grasp of basic litigation procedure, has effected service of his own Complaint and summons via the U.S. Marshal, and has to date been able to articulate the facts underlying the basis of his suit adequately in light of its relative legal complexity. Agyeman, 390 F.3d at 1103; Terrell, 935 F.2d at 1017; Palmer, 560 F.3d at 970 (finding district court did not abuse its discretion in refusing to appoint counsel when pro se prisoner "had done 'quite a good job' putting on his case and was able to "present evidence effectively.").

For these reasons, the Court DENIES Plaintiff's Motion to Appoint Counsel without prejudice (ECF No. 18).

B. Motion to Stay and/or Extend Time

Plaintiff also asks the Court to stay the proceedings in this case, and to defer ruling on Defendants' Motion until it either appoints him counsel for him or, in the alternative, grants him additional time in which to file his Opposition. See Pl.'s Mot. to Stay [ECF No. 16] at 1-2. Plaintiff claims he "has practically had no access to the law library" at CSP-LAC, is "proceeding with the assistance of another ... inmate," and did not receive this Court's Dec. 20, 2012 Wyatt Notice until January 9, 2013.*fn2 Id.

"'[S]trict 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 McGuckin v. Smith, 974 F.2d 1050, 1058 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); Bennett v. King, 205 F.3d 1188, 1189 (9th Cir. 2000) (district court erred in not extending pro se prisoner's time for filing an amended complaint [which court held prisoner had the "right" to file under Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000)] when prisoner's failure to meet 30-day leave-to-amend deadline was result of alleged lockdown and confiscation of prisoner's legal materials and where amended complaint was submitted within 30 days of original deadline); Ordonez v. Johnson, 254 F.3d 814, 816 (9th Cir. 2001) (finding abuse of discretion "where pro se prisoner delivered his amended complaint to the district court before the filing deadline," but district court rejected the timely complaint solely for non-compliance with a local rule" which required the prisoner to provide an extra copy for the judge's use).

Thus, to the extent Plaintiff claims the consequences of confinement, including limited access to CSP-LAC's law library, have already prevented timely and meaningful compliance with the January 14, 2013 deadline previously set for filing his Opposition, see Eldridge, 832 F.2d at 1136, the Court finds good cause exists to defer ruling on Defendants' Motion and grant Plaintiff's request for an extension of time to oppose it. See S.D. CAL. CIVLR 12.1 ("Extensions of time ... shall only be secured by obtaining the approval of a judicial officer, who shall base the decision on a showing of good cause.").

III. Conclusion and Order

For the reasons set forth above, the Court hereby:

1) DENIES Plaintiff's Motion for Appointment of Counsel [ECF No. 16]; but

2) GRANTS Plaintiff's Motion to Stay and Extend Time [ECF No. 18]. Plaintiff shall have until Monday, March 18, 2013, to file and serve his Opposition to Defendants' Motion to Dismiss [ECF No. 13]. Defendants, for their part, shall likewise be provided additional time, or until Monday, March 25, 2013, to file and serve their Reply.

IT IS FURTHERED ORDERED that the January 28, 2013 hearing date previously set for consideration of Defendants' Motion to Dismiss [ECF No. 13] is VACATED. Defendants' Motion is taken off-calendar and shall be considered submitted as of Monday, April 1, 2013. Unless otherwise Ordered, the Court shall thereafter enter its written decision on the papers without requiring appearances of any kind or holding any oral argument. See S.D. CAL. CIVLR 7.1(d)(1).


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