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McGinnis v. Ramos

United States District Court, S.D. California

April 17, 2017

ANTHONY McGINNIS, Plaintiff,
v.
A.T. RAMOS, Defendant.

          ORDER DENYING PLAINTIFF'S THIRD MOTION TO REQUEST APPOINTMENT OF COUNSEL [ECF No. 28]

          Hon. Jill L. Burkhardt United States Magistrate Judge.

         Before the Court is Plaintiff's third motion requesting the appointment of counsel. (ECF No. 28.) Having reviewed Plaintiff's request for counsel in conjunction with the case record, and for the reasons below, the Court concludes that Plaintiff fails to meet the criteria for the Court to appoint him counsel. Accordingly, Plaintiff's motion is DENIED.

         I. LEGAL STANDARD

         There is no constitutional right to the appointment of counsel in § 1983 cases. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, the Ninth Circuit has held that “a court may under ‘exceptional circumstances' appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied, 559 U.S. 906 (2010) (quoting Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom., Gerber v. Agyeman, 545 U.S. 1128 (2005)). “When determining whether ‘exceptional circumstances' exist, a court must consider ‘the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.'” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983)). Neither of these considerations is dispositive and instead must be viewed together. Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

         II. DISCUSSION

         A. Plaintiff's Likelihood of Success on the Merits of His Claim

         Plaintiff's complaint alleges claims of assault, negligence, and a violation of his Eighth Amendment right to be free from cruel and unusual punishment against Defendant Ramos. (ECF No. 1 at 3-5.) However, the Court dismissed Plaintiff's assault and negligence claims on February 3, 2017, on the basis that they are time-barred. (See ECF Nos. 23, 27.) Thus, only Plaintiff's Eighth Amendment claim remains pending.

         Plaintiff argues in his third motion for appointment of counsel that his “likelihood of success on the merits of his 1983 civil action is good, if not substantial[, ] just on the present and current assertions in [his] complaint.” (ECF No. 28 at 5-6.) In addition, Plaintiff argues that he has demonstrated a likelihood of success on the merits because his complaint survived the Court's screening process and Defendant's motion to dismiss. (Id. at 6.)

         Plaintiff's argument that he is likely to succeed on the merits of his claim based on the assertions in his complaint alone is insufficient to support the appointment of counsel under the Ninth Circuit's exceptional circumstances test. To show that he has a likelihood of success at trial, Plaintiff must do more than merely allege that one of his constitutional rights was violated. He must provide evidence to the effect that he has a likelihood of success on the merits of his allegations. See Torbert v. Gore, No. 14-cv-2991 BEN (NLS), 2016 WL 1399230, at *1 (S.D. Cal. Apr. 8, 2016) (“A plaintiff that provides no evidence of his likelihood of success at trial fails to satisfy the first factor of the [exceptional circumstances] test.”); Bailey v. Lawford, 835 F.Supp. 550, 552 (S.D. Cal. 1993) (“Without some evidence that he is likely to succeed at trial, plaintiff fails to satisfy . . . [the exceptional circumstances test's] first factor.”).

         Here, Plaintiff has offered no evidence that supports the allegations made in his complaint. Without such evidence, the Court cannot make a determination that Plaintiff is likely to succeed on the merits of his Eighth Amendment claim. A prison official violates an inmate's Eighth Amendment right to be free from cruel and unusual punishment when he acts with deliberate indifference to a substantial risk of serious harm to the inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). To prevail on his Eighth Amendment claim against Defendant Ramos, Plaintiff must prove two things. Id. at 834. First, Plaintiff must prove that the deprivation he allegedly suffered as a result of Defendant Ramos' conduct was “sufficiently serious.” Id. For an Eighth Amendment claim based on a failure to prevent harm, Plaintiff must show that he was incarcerated under conditions that posed a substantial risk of serious harm. Id.

         Second, Plaintiff must prove that Defendant Ramos had a “sufficiently culpable state of mind, ” which, in the context of prisoner § 1983 cases, is one of deliberate indifference. Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). To act with deliberate indifference, a prison official must know of and disregard an excessive risk to an inmate's health or safety. Id. at 837. That is, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and draw the inference. Id.

         Plaintiff's complaint alleges that on December 11, 2012, Defendant transported Plaintiff to an optometry appointment outside of the prison in which he was incarcerated. (ECF No. 1 at 3.) When Plaintiff and Defendant returned to the prison, Defendant instructed Plaintiff to exit the transport van while Plaintiff was restrained by leg shackles. (Id. at 3-4.) Plaintiff alleges that he requested that Defendant remove his leg restraints and place a stable step in front of the van's sliding door. (Id. at 4.) Plaintiff alleges further that Defendant did not remove Plaintiff's leg shackles, and he placed a milk crate on the ground in front of the van's door instead of a stepping stool. (Id.) When Plaintiff stepped onto the milk crate to exit the van, the crate slipped from under Plaintiff's foot and Plaintiff fell. (Id. at 5.) Plaintiff alleges that he suffered “injuries to [his] left-knee and thigh, and exacerbated and/or made much worse the pre-existing injuries to [his] left-side lower-back and hip.” (Id.)

         After the fall, Plaintiff alleges, Defendant grabbed Plaintiff and pulled him up from the ground forcefully, causing Plaintiff “extreme pain.” (Id.) Defendant then allegedly forced Plaintiff to walk to the prison's Central Infirmary to seek medical attention while injured, limping, and still restrained by leg shackles. (Id.) When a prison medical staff member asked Defendant why he did not use the stepping stool designated for assisting inmates in exiting transportation vans, Defendant allegedly responded that he “didn't have time to get it.” (Id. at 5-6.)

         Without evidence to support Plaintiff's allegations, the Court cannot make a determination that Plaintiff's allegations are true and accurate, that Defendant's alleged conduct posed a substantial risk of serious harm to Plaintiff, and that Defendant Ramos knew of and purposefully disregarded the fact that his actions would result in an excessive risk to Plaintiff's health or safety. Thus, at this early stage of the case, when the parties have not yet engaged in discovery and proffered to the Court evidence in support of their claims and defenses, the Court cannot find that Plaintiff is likely to succeed on the merits of his Eighth Amendment claim against Defendant Ramos. See Garcia v. Smith, No. 10-cv-1187 AJB (RBB), 2012 WL ...


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