Olmos v. Well Path

• Decision Date: 26 October 2021
• Docket Number: CV-19-08036-PCT-GMS (JFM)
• Parties: Timothy Paul Olmos, Plaintiff, v. Well Path, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Timothy Paul Olmos, Plaintiff,
v.
Well Path, et al., Defendants.

No. CV-19-08036-PCT-GMS (JFM)

United States District Court, D. Arizona

October 26, 2021

ORDER

G. MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff Timothy Olmos's (“Plaintiff”) Objection to Order Dated March 22, 2021. (Doc. 171.) Plaintiff objects to a pretrial Order by the Magistrate Judge. For the following reasons, the Court affirms the Magistrate Judge's Order. (Doc. 156).

BACKGROUND

On February 4, 2019, Plaintiff initiated this action while he was in the custody of the Arizona Department of Corrections. (See Doc. 1.) On screening Plaintiff's Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a due process claim and an equal protection claim in Counts One and Two, respectively, against former Arizona Department of Corrections Director Charles Ryan. (Doc. 5 at 9.) The Court also determined that Plaintiff stated an Eighth Amendment medical care claim in Count Three against contracted healthcare provider Well Path for its policy of providing only ibuprofen for post-operative pain management and against dentist Dr. Taylor, in his

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individual capacity, for allegedly denying adequate post-operative pain medication. (Id.) The Court ordered these Defendants to answer the respective claims against them and dismissed the remaining claims and Defendants. (Id. at 10.) After his release, Plaintiff obtained leave from the Court, (Doc. 120, ) and filed a First Amended Complaint, (Doc. 123) that added a state law claim to Count III.

The deadline for propounding discovery requests was January 4, 2021. Two days later, on January 6, Plaintiff filed a motion seeking both court-appointed counsel and a court-appointed expert, (Doc. 140) and a motion seeking modification of the scheduling order so that Plaintiff could propound and respond to discovery requests. (Doc. 142.) After full briefing, the Magistrate Judge denied Plaintiff's motions in a written order. (Doc. 156.) This Objection followed.

DISCUSSION

I. Standard of Review

Under 28 U.S.C. § 636, federal magistrate judges may, on referral from the Court, “hear and determine any pretrial matter pending before the court, ” except for certain dispositive motions.^[1] 28 U.S.C. § 636(b)(1)(A). When a magistrate judge hears and determines a nondispositive pretrial motion, their decision is subject to reconsideration by the Court “where it has been shown that the . . . order is clearly erroneous or contrary to law.” Id.; see also Estate of Conners by Meredith v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). By contrast, magistrate judges may hear dispositive pretrial motions, but must submit “proposed findings of fact and recommendations for the disposition, ” which the Court, on objection of a party, reviews de novo. 28 U.S.C. § 636(b)(1)(B); Fed R. Civ. P. 72(b)(3).

Determining whether a motion is dispositive or nondispositive starts with the text of Section 636(b)(1)(A), but it does not end there. If a type of motion is explicitly listed in

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that section, it is dispositive. Likewise, any motion “analogous to a motion listed” in that category is also dispositive. United States v. Rivera-Guerrero, 377 F.3d 1064, 1067 (9th Cir. 2004) (quoting Maisonville v. F2 Am., Inc., 902 F.2d 746, 747-48 (9th Cir. 1990)). Any type of motion that does not fall within those two groupings is nondispositive and subject to review for clear error or for being contrary to law.

Here, none of Plaintiff's motions were dispositive. “[C]ourts routinely deem orders denying appointment of counsel to be nondispositive . . . .” Jones v. Corr. Corp. of Am., No. CIV 10-2769-PHX-RCB (JRI), 2011 WL 1706838, at *4 (D. Ariz. May 5, 2011). Likewise, discovery rulings are generally nondispositive because they do not dispose of an important claim of litigation right. See 12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3068.2 (3d ed. 2021); Cranford v. Underhill, No. 06-cv-00111-LRH-GWF, 2007 WL 3256880, at *1 (D. Nev. Nov. 2, 2007) (treating motion for leave to reopen discovery as nondispositive); Gamez v. Norris, 609 Fed.Appx. 455, 456 (9th Cir. 2015) (treating motion to appoint expert witness as nondispositive). Therefore, the Court will review the Magistrate Judge's order under the clearly erroneous or contrary to law standard. A court's finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, N.C. , 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “The ‘contrary to law' standard, however, permits independent review of purely legal determinations by the magistrate judge.” F.D.I.C. v. Fid. & Deposit Co. of Md., 196 F.R.D. 375, 378 (S.D. Cal. 2000).

II. Analysis

A. Motion to Appoint Counsel

Plaintiff appeals the Magistrate Judge's denial of his request for counsel. 28 U.S.C. § 1915(e)^[2] permits the court to “request an attorney to represent any person unable to afford counsel.” Id. “The court may appoint counsel under section [1915(e)] only under

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‘exceptional circumstances.'” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). “A finding of exceptional circumstances requires an evaluation of both ‘the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.'” Wilborn, 789 F.2d at 1331 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). “Neither of these factors is dispositive and both must be viewed together before reaching a decision . . . .” Id.

1. Likelihood of Success on the Merits

Plaintiff's argument that the Magistrate Judge improperly scrutinized his likelihood of success on the merits is not well taken. (Doc. 171 at 19.) His out-of-circuit authority is incongruous with the Ninth Circuit's “exceptional circumstances” standard. See, e.g., Rayes v. Johnson, 969 F.2d 700, 703 (8th Cir. 1992) (“The appointment of counsel ‘should be given serious consideration . . . if the plaintiff has not alleged a frivolous or malicious claim' and the pleadings state a prima facie case.”). Rayes is not the law in this circuit, and inconsistent with the screening requirements of 28 U.S.C. § 1915A, which required the Court to screen Plaintiff's complaint and dismiss any portions that were “frivolous, malicious, or fail[ed] to state a claim . . . .” 28 U.S.C. § 1915A(b)(1). Such a low bar would suggest similarly situated plaintiffs would have a strong argument for obtaining appointed counsel in any case that survives screening. But the Ninth Circuit has explicitly commanded that counsel should only be appointed in “exceptional circumstances.” See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). And while it is true that the Byrd court did determine the plaintiff was entitled to counsel after reversing the district court's Section 1915A dismissal, it also engaged in a searching analysis of the merits of the plaintiff's complaint in doing so. See Byrd v. Maricopa Cnty. Bd. of Supervisors, 845 F.3d 919, 922-25 (9th Cir. 2017). Furthermore, Byrd did not consider the plaintiff's likelihood of success in a vacuum. It decided to appoint counsel after weighing the complexity of the plaintiff's claims and his “limited ability to articulate his claims pro se” in addition to the “possible merit of his claims.” Id. at 925. That is consistent with what the Magistrate

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Judge did here, where he viewed both factors “together before reaching a decision.” Wilborn, 789 F.2d at 1131.

a. Count I

Count I alleges that Defendants Ryan and Shinn took Plaintiff's property without just compensation by complying with an Arizona law requiring certain deductions from prison trust accounts. (Doc. 123 at 3); Ariz. Rev. Stat. § 31-254. He also alleges that the law violates due process because there is no pre- or post-deprivation review available under the current procedures. (Doc. 123 at 3-4.) As to Count I, Plaintiff seeks declaratory relief and damages. (Doc. 123 at 18.) However, as the Magistrate Judge noted, (Doc. 156 at 4-5), Plaintiff will be unable to prevail on this claim because of the Eleventh Amendment. The Ninth Circuit has explicitly held that “the Eleventh Amendment bars reverse condemnation actions brought in federal court against state officials in their official capacities.”^[3] Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 956 (9th Cir. 2008). Insofar as Plaintiff invokes the Ex parte Young exception for prospective relief, the Ninth Circuit squarely addressed this issue in Seven Up: “[R]everse condemnation actions cannot qualify as claims for prospective relief, and Ex parte Young consequently does not apply.” Id.; see also Suever v. Cornell, 579 F.3d 1047, 1059 (9th Cir. 2009) (holding the same for declaratory relief). This Court is bound by the Ninth Circuit's holding in this case, and Plaintiff will be unable to show likelihood of success on the merits as to Count I.

b. Count II

Plaintiff next argues that Defendants Ryan and Shinn violated his Equal Protection rights because he was subjected to “unequal treatment in programming and living conditions.” (Doc. 123 at 5.) He asks for declaratory relief. (Doc. 123 at 18.) However, “[a]n inmate's release from prison while his claims are pending generally will moot any

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claims for injunctive relief relating to the prison's policies unless the suit has been certified as a class action.” Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995). “The same is true for claims seeking declaratory relief.” Kotzev v. Ryan, No. CV-10-0907-PHX-FJM, 2012 WL 1289847, at*2 (citing Rhodes v. Stewart, 488 U.S. 1, 2-4 (1988) (per curiam)). This is...