United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis,
with a civil rights action pursuant to 42 U.S.C. §1983.
Plaintiff is alleging that his First and Fourteenth Amendment
rights were violated when defendant threatened retaliation
against him were he to file grievances against prison
officials. To date, a number of motions and requests have
been filed in this case, including, but not limited to
motions to appoint counsel, motions to compel, and requests
that subpoena duces tecum be issued. The court addresses
herein the motions and requests that are outstanding.
January 26, 2010, plaintiff filed this action in Solano
County Superior Court. (See ECF No. 1-1 at 2-29 et
seq.). The matter was removed to the Northern District Court
of California by defendant on April 23, 2010, and eventually
transferred to this district on May 6, 2010. (See
ECF Nos. 1, 7).
first amended complaint, filed December 22, 2010 (ECF No.
14), contained six claims, all of which generally related to
violations of his First and Fourteenth Amendment rights to
have access to courts and to be free from retaliation when
exercising his constitutional rights. (See id. at
7-21). Specifically, plaintiff alleged that the originally
named defendants, via threats, intimidation and/or
retaliation, prevented and/or attempted to prevent him from
filing grievances as well as court pleadings. (See
November 22, 2011, this court dismissed plaintiff's
complaint for failure to state a cognizable claim against any
of the named defendants. (See ECF Nos. 20, 22).
Plaintiff appealed, and on November 7, 2014, the Ninth
Circuit affirmed in part, reversed in part, and remanded the
case for further proceedings. (See ECF No.
remaining issue in this matter, as determined by the Ninth
Circuit, is whether plaintiff has a viable First Amendment
retaliation claim against defendant who plaintiff alleges
threatened him with disciplinary action if he accessed the
prison's grievance system. (See ECF No. 36 at 5;
see generally ECF No. 85 at 7-8).
remand, on February 17, 2016, the sole remaining defendant
filed a motion for summary judgment. (ECF No. 64). Defendant
also filed an answer to the complaint on March 10, 2016. (ECF
No. 74). On January 9, 2017, the court, in relevant part,
denied defendant's summary judgment motion with respect
to plaintiff's First Amendment retaliation claim.
(See ECF Nos. 85, 99, 104).
March 29, 2017, this court issued a discovery and scheduling
order. (See ECF No. 108). Since then, plaintiff has
filed numerous motions in this court, some of which remain
outstanding. (See ECF Nos. 109, 113, 120, 128, 132,
134). A motion filed by defendant remains outstanding as
well. (See ECF No. 122). The court addresses each of
these motions herein, as well as a number of
“requests” and other pleadings filed by
plaintiff. (See ECF Nos. 115, 119, 125, 126, 129,
130, 135, 137, 139, 141).
January 2018, the court was informed that the parties were
interested in participating in a settlement conference. The
matter is currently scheduled for April 4, 2018, in front of
United States Magistrate Judge Kendall J. Newman.
(See ECF No. 136).
court acknowledges the proximity of the issuance of this
order to the pending settlement conference date and that the
determinations herein may affect the parties' desire to
engage in settlement proceedings. Therefore, if after
reviewing this order, either party does not wish to proceed
with the settlement conference, the party will be required to
notify the court immediately.
OF MOTIONS AND REQUESTS
Plaintiff's Motion to Appoint Counsel (ECF No.
requests for a second time that the court appoint counsel to
his case. (See ECF No. 109). Plaintiff's
previous request for counsel, filed in February 2016 (ECF No.
63), was denied due to his failure to show that exceptional
circumstances existed that warranted the appointment of
counsel. (See ECF No. 79).
support of plaintiff's instant request for counsel,
plaintiff states that he meets the first prong - the
likelihood of success on the merits requirement - because:
(1) in July 2014, the court's dismissal of the case for
failure to state a claim was reversed and remanded in part by
the Ninth Circuit, and (2) in June 2016, this court denied
defendant's motion for summary judgment in part.
(See ECF No. 109 at 2-5). To support the second
prong - the “ability of the plaintiff to articulate his
claims pro se” requirement - plaintiff asserts that:
(1) he is sixty years old, indigent and representing himself;
(2) he has been prosecuting this case since 2007, and the
case is likely to proceed to trial; (3) he will not be able
to successfully prosecute this case at trial without the
assistance of a qualified legal professional, and (4) his
attempts to secure legal representation on a contingency
basis have been unsuccessful. (See id. at 5-6).
courts lack authority to require counsel to represent
indigent prisoners in section 1983 cases. Mallard v.
United States Dist. Court, 490 U.S. 296, 298 (1989). In
exceptional circumstances, the court may request an attorney
to voluntarily represent such a plaintiff. See 28
U.S.C. § 1915(e)(1); Terrell v. Brewer, 935
F.2d 1015, 1017 (9th Cir. 1991); Wood v.
Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
When determining whether “exceptional
circumstances” exist, the court must consider
plaintiff's likelihood of success on the merits as well
as the ability of the plaintiff to articulate his claims pro
se in light of the complexity of the legal issues involved.
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
(stating same and concluding district court did not abuse
discretion in declining to appoint counsel). The burden of
demonstrating exceptional circumstances is on the plaintiff.
Id. Neither of these factors is dispositive and
instead must be viewed together. Palmer, 560 F.3d at
970 (citing Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986)), but see Richards v. Harper,
864 F.2d 85, 87-88 (9th Cir. 1988) (finding no likelihood of
success on merits and not addressing “ability to
articulate claims pro se” prong in exceptional
circumstances analysis prior to denying motion for counsel).
Circumstances common to most prisoners, such as lack of legal
education and limited law library access, do not establish
exceptional circumstances that warrant a request for
voluntary assistance of counsel.
First Prong: Likelihood of Success on the Merits
reasons plaintiff provides in support of the first prong of
the exceptional circumstances analysis - likelihood of
success on the merits - are inadequate. First, implicit in a
circuit's reversal and remand of a district court
decision is not necessarily that the affected claim therein
is one that has sufficient merit that will ultimately lead to
a grant of relief. This court dismissed plaintiff's
complaint because it believed that plaintiff had failed to
present any cognizable claims, that is, any claims that were
viable and therefore, could be litigated. (See ECF
Nos. 20, 22). The Ninth Circuit reversed and remanded in part
because it determined that some of the facts as presented
established that plaintiff did, in fact, have a cognizable
First Amendment retaliation claim. (See ECF No. 36
Ninth Circuit regularly reverses and remands cases without
making a substantive finding on the salient issue warranting
reversal. Had the Circuit, however, believed that
plaintiff's case was meritorious on its face as presented
on appeal, it had the power not only to reverse this
court's decision but to simultaneously grant plaintiff
relief outright without remand. See, e.g., Jones
v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (assuming
actual innocence claim was cognizable, finding insufficient
showing in claim to merit relief and reversing district
court's decision without remand); see also Yao v.
I.N.S., 2 F.3d 317 (9th Cir. 1993) (finding
petitioner's claim cognizable but without merit and
denying petition outright). However, the Circuit did not
grant plaintiff relief outright. For these reasons,
plaintiff's argument that the Circuit's partial
reversal and remand indicates the likelihood of his
claim's success on the merits fails.
plaintiff's argument that this court's partial denial
of defendant's motion for summary judgment also
demonstrates his likelihood of success on the merits, it
fails as well. A grant of a motion for summary judgment is
appropriate when the moving party can show that “there
is no genuine dispute as to any material fact” and that
therefore, the movant “is entitled to judgment as a
matter of law.” Fed. R. Civ. Proc. 56(a). The court
denied defendant's motion for summary judgment in part
pursuant to Federal Rule of Civil Procedure 56(d) because it
determined that plaintiff was correct in his assertion that
the summary judgment motion was premature; that it would be
virtually impossible for plaintiff to properly oppose
defendant's summary judgment motion without the benefit
of first conducting discovery. (See ECF No. 85 at
7). In so doing, however, the court made no finding as to the
viability of plaintiff's retaliation claim. (See
generally id.). For this reason, this argument also
fails to establish the likelihood of success on the merits
Second Prong: Ability to Articulate Claims Pro Se
reasons plaintiff provides in support of the second prong of
the exceptional circumstances analysis are also inadequate.
Neither plaintiff's age nor his indigence have any
bearing on his ability either to articulate his claims or to
adequately represent himself. See Bashor v.
Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (finding
court was within its discretion when it denied appointment of
counsel to sixty-year old appellant proceeding in forma
pauperis with no background in law who thoroughly presented
issues in petition). The record indicates that plaintiff,
though indigent, has adequately represented himself thus far
in this matter. Furthermore, the time plaintiff has spent to
date litigating this case has no bearing on his ability to
adequately represent himself. On the contrary, the fact that
this case remains on the court's docket when it was filed
in 2010 - in part due to plaintiff's numerous pleadings
filed sua sponte - indicates that neither the continued
litigation of this case to trial nor the complexity of the
issues are beyond plaintiff's acumen. Moreover, the fact
that plaintiff had appointed counsel for his Ninth Circuit
appeal which led to a partial reversal and remand
(see ECF No. 36 at 3) is not persuasive given that
the Circuit's decision was based in part on its reading
of plaintiff's original and amended complaints (see
id. at 2) which plaintiff compiled by himself. Thus,
plaintiff has not established that his ability to articulate
his claims pro se in light of the complexity of the legal
issues involved is lacking.
these reasons, the court finds that plaintiff has failed to
meet his burden of demonstrating exceptional circumstances
warranting the appointment of counsel at this time.
Consequently, his request for appointment of counsel (ECF No.
109) will be denied without prejudice.
Plaintiff's Motion to Compel Defendant to Comply with
Discovery Requests and “Reply”
and Motion to Withdraw Same (ECF Nos. 113, 116, 119,
Relevant Facts 1. Plaintiff's Motion to
5, 2017, plaintiff filed a motion to compel. (ECF No. 113).
In it, plaintiff asked that defendant be ordered to respond
to the discovery requests related to his claim of
defendant's refusal to make copies of documents for
plaintiff's court actions. (See id. at 1-2). He
also asked for sanctions. (Id. at 14). In the same
motion plaintiff also seeks clarification of the court's
partial grant and denial of defendant's motion for
summary judgment issued June 16, 2017. (See ECF No.
113 at 13; see also ECF No. 85).
thereafter, defendant opposed the motion to compel arguing
that it should be denied because: (1) plaintiff had failed to
attempt to meet and confer prior to filing the motion to
compel in violation of Local Rule 251; (2) defendant had
properly and fully responded to plaintiff's discovery
requests, and (3) plaintiff had failed to indicate which
discovery responses he believed were inadequate.
(See ECF No. 116 at 1-3).
Plaintiff's “Replies” / Motion to Withdraw
26, 2017, plaintiff filed a “reply” to
defendant's opposition to his motion to compel. (ECF No.
119). In the reply, plaintiff requested that his motion to
compel (ECF No. 113) be withdrawn without prejudice to allow
him “to refile on these issues and to include such
additional request for a court order to compel the defendant
to provide supplemental responses to discovery
requests.” (See id. at 1-4).
25, 2017, plaintiff filed a second “reply” to
defendant's opposition to his motion to compel discovery.
(See ECF No. 127). The statements therein were
somewhat similar to plaintiff's first reply.
(Compare ECF No. 119, with ECF No. 127).
Plaintiff claimed he had yet to receive supplemental
discovery he had requested of defendant (see ECF No.
127 at 3), and plaintiff reiterated that he had requested
that his motion to compel be withdrawn (see id. at