Opinion

(PC) Mills v. Jones

Court
District Court, E.D. California
Filed
Sep 12, 2022
Cited by
0 cases
Authority
More cited than 18.1%

“Most actions require 7 development of further facts during litigation and a pro se litigant will seldom be in a position to 8 investigate easily the facts necessary to support the case.”

How later courts described this case

  • “Most actions require 7 development of further facts during litigation and a pro se litigant will seldom be in a position to 8 investigate easily the facts necessary to support the case.”
  • “[T]he need for 4 further factual discovery is not, by itself, sufficient to establish the complexity of the legal 5 issues.”

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 THOMAS K. MILLS, No. 1:21-CV-01193-ADA-HBK (PC)

12 Plaintiff,

13 v. ORDER AFFIRMING MAGISTRATE

JUDGE’S DENIAL OF APPOINTMENT OF

14 JONES, et al., COUNSEL

15 Defendant. (Doc. No. 130, 133)

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Plaintiff Thomas K. Mills is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has filed a total of seven motions for

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appointment of counsel. (Doc. Nos. 10, 40, 65, 68, 85, 91, 122.) The magistrate judge has denied

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each of plaintiff’s requests. (Doc. Nos. 14, 44, 81, 88, 95, 130.) Following the most recent denial,

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plaintiff filed a Request to Enter an Objection to Magistrate Judge’s Denial of Plaintiff’s Seven

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Motions for Appointment of Counsel. (Doc. No. 133.) This court considers plaintiff’s objections

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pursuant to Federal Rule of Civil Procedure 72(a).

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I.

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Legal Standard

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Requests for appointment of counsel are non-dispositive motions that magistrate judges

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handle in the first instance. See Brown v. Reif, No. 2:18-CV-01088 KJM CKD P, 2019 WL

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1 989874 at *2 (E.D. Cal. Mar. 1, 2019); L.R. 302(c)(17); 28 U.S.C. § 636(b)(1)(A). A party has no

2 right to counsel in civil actions. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Courts may,

3 however, appoint an attorney to represent an indigent prisoner in a section 1983 case under

4 “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 28 U.S.C. §

5 1915(e)(1). In deciding whether to appoint counsel, courts must consider “the likelihood of

6 success on the merits as well as the ability of the petitioner to articulate his claims pro se in light

7 of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

8 1983). The district court will not set aside a magistrate’s order on a non-dispositive matter unless

9 that order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a);

10 L.R. 303(f). A matter is clearly erroneous when “the district court is left with the definite and firm

11 conviction that a mistake has been made.” Computer Econ., Inc., 50 F. Supp. 2d at 983 (quoting

12 Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997)).1

13 II.

14 Discussion

15 The magistrate judge’s most recent denial of plaintiff’s request for counsel states that

16 plaintiff has raised “no new grounds not previously considered by the Court.” (Doc. No. 130.)

17 Plaintiff’s objection disputes this. (Doc. No. 133.) Reviewing plaintiff’s most recent motion for

18 appointment of counsel, the Court notes that plaintiff raised the following issues: (1) the factual

19 complexity of the case, including plaintiff’s potential need to call or cross-examine a medical

20 expert; (2) the substantial amount of discovery and plaintiff’s inability to investigate because he

21 was transferred out of the prison where the alleged incident occurred; (3) the existence of

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23 1 District courts in California are divided over whether the clearly erroneous standard applies only

to a magistrate judge’s factual and discretionary determinations or to legal determinations as well.

24 See SMC Networks, Inc. v. Hitron Technologies, Inc., No. SACV 12-1293-JST (RNBx), 2013

WL 12136372 at *2 (C.D. Cal. Mar. 15, 2013) (comparing rulings from different California

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district courts). The Eastern District permits district court judges to review purely legal

determinations in non-dispositive pre-trial motions de novo. See Ramos v. Mayfield, No. 21-cv-

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1036-JLT-EPG, 2022 WL 95222, at *1 (E.D. Cal. Jan. 10, 2022); Brown, 2019 WL 989874, at

27 *2. Regardless, a request for appointment of counsel presents a mixed question of law and fact,

requiring the district court to review the magistrate judge’s ruling under the clearly erroneous

28 standard. See Brown, 2019 WL 989874, at *2.

1 conflicting testimony; (4) plaintiff’s indigency and limited access to the law library; and (5) the

2 legal complexity of conducting a trial. As discussed below, the Court agrees with the magistrate

3 judge that plaintiff’s most recent application fails to raise new grounds. Plaintiff does, however,

4 elaborate on two issues in a way not discussed in prior applications for appointment of counsel.

5 First, plaintiff specifically states that it will “probably be necessary” to call or cross-examine a

6 medical expert at trial. Second, plaintiff asserts that, because he was transferred from North Kern

7 State Prison to San Quentin State Prison, he is unable to locate and interview potential

8 eyewitnesses. The Court will address both issues.

9 A. The need to call or cross-examine a medical expert

10 Plaintiff argues that “the presence of medical or other issues requiring expert testimony

11 supports the appointment of counsel.” As an abstract principle, this may be correct. Plaintiff,

12 however, has done nothing more than make a bare assertion that medical expert testimony may be

13 necessary in this case. Additionally, the non-binding precedents that plaintiff cites are inapposite.

14 Two of the cases involved allegations of medical deliberate indifference. For example, in

15 Montgomery v. Pinchak, 294 F.3d 492, 494 (3d Cir. 2002), the plaintiff suffered from a heart

16 condition and HIV. The court noted that an expert would be necessary to explain the

17 consequences of medical treatments that failed to address these conditions because the effects of

18 such indifference would not be apparent to a lay person. Id. at 504. Here, plaintiff’s allegations

19 are far more straightforward. In his first amended complaint, plaintiff alleges that corrections

20 officers pushed him to the ground and punched him in the face repeatedly while he was

21 handcuffed. (Doc. No. 7.) As a result, plaintiff’s face was bleeding and swollen, and he suffered

22 several broken ribs. Id. Unlike the deliberate indifference claims in Montgomery, the claims here

23 involve overt abuse resulting in apparent and conspicuous injury. There is no showing at this time

24 that expert medical testimony would be necessary, much less required. This Court is satisfied that

25 the magistrate judge has considered the complexity of plaintiff’s claims. Plaintiff’s unsupported

26 assertions regarding the need for medical expert testimony do not persuade this Court that the

27 magistrate judge’s decision to deny appointment of counsel was clearly erroneous.

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1 B. Inability to locate and interview witnesses

2 Courts construe difficulties in conducting discovery as a factor relating to the complexity

3 of the case. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 n.5 (9th Cir. 1986) (“[T]he need for

4 further factual discovery is not, by itself, sufficient to establish the complexity of the legal

5 issues.”). The inability to contact or interview witnesses will not render a matter sufficiently

6 complex to warrant the appointment of counsel. See Id. at 1331 (“Most actions require

7 development of further facts during litigation and a pro se litigant will seldom be in a position to

8 investigate easily the facts necessary to support the case.”); Arellano v. Sedighi, No. 15-cv-02059-

9 AJB-BGS, 152020 WL 5877832, at *47 (S.D. Cal. Oct. 1, 2020) (denying appointment of

10 counsel to help locate witnesses no longer housed at same prison as plaintiff); Trueblood v.

11 Cappola, No. 3:19-cv-05816-RBL-JRC, 2020 WL 1929265, at *2 (W.D. Wash. Apr. 21, 2020).

12 As discussed above, the magistrate judge has specifically considered the complexity of

13 plaintiff’s case in prior denials of motions for appointment of counsel. (See Doc. Nos. 14, 81.)

14 The Court also notes that on August 10, 2021 – over one month before his initial request for

15 appointment of counsel – plaintiff notified the court he had been transferred to San Quentin State

16 Prison. (Doc. No. 6.) The magistrate judge, therefore, had knowledge of plaintiff’s transfer when

17 considering each of plaintiff’s seven applications for appointment of counsel. Plaintiff’s most

18 recent application, while more detailed than his previous six, does not convince this Court that the

19 magistrate judge’s ruling was clearly erroneous.

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21 Conclusion

22 The court understands that incarcerated plaintiffs with limited education are not in the best

23 position to conduct a jury trial. See Solis v. County of Los Angeles, 514 F.3d 946, 958 (9th Cir.

24 2008). The law, however, places strict limits on a court’s discretion to appoint volunteer counsel

25 to assist in civil actions. The magistrate judge has carefully considered seven applications for

26 counsel from plaintiff and concluded that none satisfy that high bar. After reviewing the docket,

27 this court cannot conclude that the magistrate judge’s analysis was clearly erroneous or contrary

28 to law. Plaintiff’s objections are overruled.

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3 | IT ISSO ORDERED.

4 Dated: _ September 12, 2022

UNITED $TATES DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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