Tran v. Gore
| Decision Date | 08 March 2013 |
| Docket Number | Case No. 10cv2682-BTM (BLM) |
| Parties | HOANG MINH TRAN Plaintiff, v. WILLIAM D. GORE, et al. Defendants. |
| Court | U.S. District Court — Southern District of California |
Currently before the Court is Plaintiff's November 8, 2012 "Motion For Entitlement of Americans Disability Act (ADA) Reasonable Accommodation Under Rehabilitation Act Title II Required Appointment Of Counsel" [ECF. No. 36], November 13, 2012 Motion For A Competency Hearing [ECF. No. 38], Defendants' Opposition to Plaintiff's Request for Competency Hearing [ECF No. 52], and Mr. Allan Tracy Gilmore's January 14, 2013 "Ex Parte Motion and Request for Court to Appoint Next Friend or Appoint Counsel to Litigate on Behalf of Hoang Minh Tran Due to Incompetence" [ECF No. 51].
Having considered all of the briefing and supporting documents presented, and for the reasons set forth below, the motions [ECF Nos. 36, 38 & 51] are DENIED.
Plaintiff initiated this action with the filing of his complaint on December 20, 2010. ECF No. 1. On July 25, 2011, Plaintiff filed his First Amended Complaint. ECF No. 7 ("FAC"). In his FAC, Plaintiff alleges that his civil rights were violated and he was denied equal protection, freedom of speech, due process, adequate medical care, and freedom from cruel and unusual punishment while he was detained in the George F. Bailey Detention Facility on August 1st, 6th, and 12th 2009. Id. at 1-4. Specifically, Plaintiff alleges that he was denied a welfare package containing various personal hygiene products and forced into solitary confinement without any type of hearing. Id. at 2-3. Plaintiff further contends that he was improperly denied medication for hemorrhoids in retaliation for his alleged role in the high profile escape of another inmate from the detention facility. Id. at 4-5. Finally, Plaintiff alleges that certain Defendants illegally confiscated his bible, violating his right to freedom of religion. Id. at 6.
Plaintiff filed a motion for appointment of counsel on December 20, 2010. ECF No. 3. That motion was denied on May 23, 2011 in an order finding that "neither the interests of justice nor exceptional circumstances" warranted the appointment of counsel. ECF No. 4.
On February 21, 2012, Defendant John Gill, M.D., filed a motion to dismiss Plaintiff's FAC pursuant to Rule 12(b)(6) for failure to state a claim.1 ECF No. 19. On May 31, 2012, Defendants Sarandi Marina, Lizzie Womack, and Brandt O. Pile filed answers to the FAC. ECF Nos. 21 and 22.
On August 27, 2012, Plaintiff filed another motion for appointment of counsel after being released from incarceration. ECF No. 25. That motion was denied on October 24, 2012 because Plaintiff again failed to establish "the extraordinary circumstances necessary to justify a pro bono appointment." ECF No. 30 at 3.
On October 11, 2012, Defendants Sarandi Marina, Lizzie Womack, and Brandt O. Pile filed a Motion to Compel Plaintiff to Respond to Discovery and the Court issued a briefing schedule that same day. ECF Nos. 26 & 27. The motion was granted in part and denied in part by theCourt on November 7, 2012. ECF No. 34. In the order, Plaintiff was not sanctioned, but was ordered to respond to Defendants' written discovery by November 30, 2012. Id. at 4.
On October 19, 2012, the Court held a Mandatory Settlement Conference and Plaintiff failed to appear. ECF No. 29. On that same day, the Court issued an Order to Show Cause why Sanctions Should not be Imposed for Plaintiff's failure to appear and required Plaintiff to file a declaration regarding his failure. Id. Plaintiff filed a Motion for Relief of Sanctions on November 2, 2012 that the Court interpreted as Plaintiff's declaration. ECF No. 33. After reviewing Plaintiff's declaration and speaking with Plaintiff at the hearing, the Court declined to impose sanctions. ECF No. 41.
On November 8, 2012, Plaintiff filed a "Motion For Entitlement of Americans Disability Act (ADA) Reasonable Accommodation Under Rehabilitation Act Title II Required Appointment Of Counsel." ECF No. 36. On November 13, 2012, Plaintiff filed a Motion For A Competency Hearing, and on November 29, 2012, Plaintiff filed a notice of voluntary dismissal. ECF Nos. 38 & 43. All three documents were accepted on discrepancy by District Judge Barry T. Moskowitz and the first two referred to Magistrate Judge Barbara L. Major. ECF. Nos. 35, 37 & 42. To aid in evaluating Plaintiff's motions, the Court issued an order on December 14, 2012 asking Plaintiff to submit "all of his medical records from January 1, 2012 to the present, that support his allegations that he is incompetent" and Defendants to respond. ECF No. 44. Plaintiff timely filed his supporting documents on January 7, 2013 and Defendants filed an opposition to the motion for a competency hearing on January 25, 2013. ECF Nos. 48, 49 & 52.
On January 14, 2013, Mr. Allan Tracy Gilmore filed an "Ex Parte Motion and Request for Court to Appoint Next Friend or Appoint Counsel to Litigate on Behalf of Hoang Minh Tran Due to Incompetence." ECF No. 51.
The Court vacated all dates set forth in the Court's June 1, 2012 Order Regulating Discovery and Other Pretrial Proceedings [ECF No. 23] on February 6, 2012 in response to Defendants' February 1, 2013 motion to continue dates [ECF No. 53]. ECF No. 54.
In his "Motion for Entitlement of Americans Disability Act (ADA) Reasonable Accommodation Under Rehabilitation Act Title II Required Appointment Of Counsel," Plaintiff argues that he is a person with a disability under the ADA due to his numerous physical and mental conditions and, therefore, is entitled to the "appropriate and reasonable accommodation [of] attorney representation." ECF No. 36 at 1-4. In support, Plaintiff states that the medication that he takes has "adversary [sic] side effect[s] such as: drowsiness, dizziness, light headache, and lack of concentration to focus while [sic] prevented him to learn how to or become an [sic] competent pro se litigant or attorney" and that "[d]enying appointed counsel for certain disabled civil litigants violated Title II . . . of the ADA." Id. at 2. Plaintiff further states that the Court's failure to appoint counsel would be tantamount to preventing Plaintiff from bringing his case and a denial of "equal justice and fair treatment." Id. at 4. Finally, Plaintiff argues that appointing counsel should be considered along the same lines as providing an interpreter or closed caption decoders because counsel would interpret the law and allow Plaintiff to participate in litigating his case. Id. at 5-6. The Court interprets Plaintiff's motion as his third request for counsel.
The Constitution provides no right to appointment of counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25 (1981). However, under 28 U.S.C. § 1915(e)(1), courts are granted discretion to appoint counsel for indigent persons under "exceptional circumstances." Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional circumstances demands 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)).
Since the outset of this case more than a year-and-a-half ago, Plaintiff has drafted and submitted numerous pleadings and motions without the assistance of counsel. For example, Plaintiff has submitted a complaint and an amended complaint [ECF Nos. 1 & 7], two previousmotions to appoint counsel [ECF Nos. 3 & 25], a motion for relief from sanctions [ECF No. 33], the instant ADA motion [ECF No. 36], a motion for a competency hearing [ECF No. 38], and a notice of voluntary dismissal [ECF No. 43]. From the Court's review of these documents, it is apparent that Plaintiff has a sufficient grasp of his case and the issues involved, and he is able to adequately articulate the factual and legal basis of his claims.2 Although Plaintiff's allegations are sufficient to state a claim for relief, the Court finds that Plaintiff's likelihood of success on the merits is low. However, even if the Court determined that it is likely that Plaintiff will succeed on the merits, Plaintiff fails to establish the requisite "exceptional circumstances" warranting the appointment of counsel.
Plaintiff's instant motion to appoint counsel makes essentially the same arguments: he is physically disabled, he is mentally disabled3 , and he is relying upon another layman for legal assistance. ECF Nos. 3, 25, & 36. Plaintiff essentially makes the same argument that every pro se inmate could make—namely, that an attorney could or would handle this case better than he can. ECF No. 36 at 5-6. This argument does not warrant the appointment of counsel. Thus, in his instant motion, Plaintiff does not allege any different facts or circumstances to change the Court's prior decision that there are no exceptional circumstances that warrant appointing an attorney to represent him. In addition, Plaintiff has not demonstrated that he is entitled to counsel under the ADA or that his medical conditions prevent him from litigating this case.
Plaintiff contends that appointed counsel would assist him in interpreting communications from the Court and participating in "pretrial proceedings such as deposition, discovery, and interrogatory, and gather fact finding or when it comes to trial." ECF No. 36 at 5-6. However, factual disputes and anticipated examinations of witnesses at trial do not warrant the finding of...
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