Judge: Michael P. Linfield, Case: BC700688, Date: 2022-08-22 Tentative Ruling
Case Number: BC700688 Hearing Date: August 22, 2022 Dept: 34
SUBJECT: Motion For The Appointment Of Counsel
Due To Incarceration; Mental Impairment(s); And, Hampering By Prison
Official’s.
Moving Party: Plaintiff
Marcus R. Ellington, Sr.
Resp. Party: Sheriff
Alex Villanueva
Plaintiff Marcus
Ellington Motion is DENIED.
I.
PRELIMINARY
COMMENTS
Mr. Ellington is incarcerated,
serving what is most likely a life-sentence.
This case has been pending for over 4 years. Mr. Ellington believes he was wrongly sentenced
and has been mistreated in prison. The
Court has held at least 15 hearings in this matter. Throughout that time,
Plaintiff Marcus Ellington has been ably representing himself.
The Court understands why Mr.
Ellington would request appointment of counsel, the use of a laptop computer,
to be transferred to another facility or program, or to be released from custody. As to those areas over which this Court has
discretion (e.g., appointment of counsel), the Court denies Mr. Ellington’s
motion. As to the remaining areas of Mr.
Ellington’s concern (e.g., being transferred to another facility or being released
from custody), this Court denies the motion without prejudice, because this Court
is not the proper forum for those issues.
II.
BACKGROUND
On April 2, 2018, Plaintiff Marcus
R. Ellington in propria persona, commenced this action against Defendants State
of California, City of Los Angeles, J. McDonnell, Wallace, Ruiz, Zolnouni,
Wilmore, Kionian, Banquelos, Negretti, Osegura, and Chin for general
negligence, intentional tort, premises liability, slander, fraud, defamation,
legal malpractice, and state and federal constitutional violations, seeking
damages in the amount of $10.7 million dollars.
On November 14, 2019, Ellington
filed a First Amended Complaint against Defendants Men’s Central Jail, A.
Villanueva, J. Wallace, N. Ruiz, P. Zolnouni, E. Wilmore, K. Konian, Megan’s
Law, American Sex Offender.com, and homefacts.com.
On June 15, 2021, the Court denied
Plaintiff’s motion for the appointment of counsel.
On October 21, 2021, Ellington
filed a Second Amended Complaint against Defendants Men’s Central Jail, A.
Villanueva, J. Wallace, N. Ruiz, P. Zolnouni, E. Wilmore, K. Konian, Megan’s
Law, American Sex Offender.com, homefacts.com, Banquelos, and Pangalini.
On March 1, 2022, Ellington filed a
Third Amended Complaint against Defendants Men’s Central Jail, A. Villanueva,
J. Wallace, N. Ruiz, P. Zolnouni, E. Wilmore, K. Konian, Megan’s Law, American
Sex Offender.com, homefacts.com, Banquelos, Pangalini, Chin, and Thomas.
On May 20, 2022, the remaining
Defendant’s demurrer was sustained without leave to amend.
On April 29, 2022, the Court denied
Plaintiff’s Request to Reinstate/ Reconsider the Motion for Appointment of
Counsel and his Alternative Motion for Release for Good Cause.
On July 8, 2022,
Plaintiff filed the current Motion for Appointment of Counsel.
I.
Motion for Appointment of Counsel
A.
Legal
Standard
“A prisoner has a statutory right to initiate
civil actions. (Pen.Code, § 2601, subd. (d).) ‘In the case of an indigent
prisoner initiating a bona fide civil action, this statutory right carries with
it a right of meaningful access to the courts to prosecute the action.’” (Jameson
v. Desta (2009) 179 Cal.App.4th 672, 678 [citing Wantuch v. Davis (1995) 32
Cal.App.4th 786, 792].)
“Under California law, the
appointment of counsel for an indigent prisoner pursuing a civil action is an
aspect of the right of access to the courts.” (Smith v. Ogbuehi (2019)
38 Cal.App.5th 453, 465.) “California
decisions identify the appointment of counsel as one of the measures available
to a trial court to assure an indigent prisoner is provided meaningful access
to the courts.” (Id. at p. 468.) “However, neither the California
Constitution nor Penal Code section 2601, subdivision (d) have been interpreted
to require the appointment of counsel for indigent plaintiff litigants as a
matter of right.” (Ibid., emphasis in original.) “Instead, the
choice of measures to safeguard a prisoner’s right, as a plaintiff or
defendant, to meaningful access to the courts to prosecute a civil action is
committed to the trial court’s discretion.” (Ibid.)
“The exercise of a trial court’s
discretion is guided by a three-step inquiry established in published appellate
decisions.” (Id. at p. 458.) “First, the trial court determines whether
the prisoner is indigent.” (Ibid.) “Second, the court determines whether
the lawsuit involves a bona fide threat to the inmate’s personal or property
interests.” (Ibid.) “If both conditions are satisfied, the trial court
must consider the measures available to protect appellant’s right of meaningful
access to the courts, including the appointment of counsel.” (Ibid.)
“[A] trial court must examine the
totality of the circumstances when making the discretionary determination of
whether an inmate’s access is being impeded.” (Id. at p. 470.) “It
follows that the relevant circumstances include, without limitation, the
factors listed in the federal decisions for determining whether exceptional
circumstances exist in a particular case.” (Ibid.) The factors
considered by federal district courts in determining the existence of
exceptional circumstances include “‘(1) the type and complexity of the case;
[¶] (2) whether the indigent is capable of adequately presenting his case; [¶]
(3) whether the indigent is in a position to investigate adequately the case; .
. . [¶] (4) whether the evidence will consist in large part of conflicting
testimony so as to require skill in the presentation of evidence and in cross
examination’ and (5) ‘whether appointed counsel would aid in the efficient and
equitable disposition of the case.’” (Id. at p. 469, quoting Jackson
v. Dallas Police Dept. (5th Cir. 1986) 811 F.2d 260, 262.)
B.
Discussion
Plaintiff, a prisoner who is
representing himself, requests that the Court appoint counsel due to what he
claims is his mental illness, which impairs his ability to concentrate, think
and do the work involved in litigating this case. Plaintiff asserts that he
suffers with post-traumatic stress disorder and bipolar condition with severe
depression with psychotic features, which affect Plaintiff’s brain function.
Plaintiff also explains that he suffers from Severe Spinal Stenosis, with Disc
extrusions in his Neck, which causes him severe sciatic nerve pain in his neck,
arms, hands, legs, feet, and back.
Plaintiff states that “many times the Plaintiff is so depressed that He
is unable to get out of bed. He is unable to do anything including eat. Due to
depression.” (Motion, p. 3.)
Plaintiff argues that these
physical and mental impairments render him incapable of accessing the court and
doing the work necessary to bring this claim to completion. He also claims that his incarceration “hampers
his ability to bring his action.”
(Motion, p. 3.)
The Court has no difficulty finding
that Plaintiff is indigent. While Plaintiff fails to provide evidence of such
in support of his request, the Court notes that Plaintiff has applied for and
the Court has granted a fee waiver. (See 04/02/2018 Order on Court Fee Waiver.)
In the original complaint,
Plaintiff alleged causes of action for general
negligence, intentional tort, premises liability, slander, fraud, defamation,
legal malpractice, and state and federal constitutional violations
against multiple defendants, seeking damages in the amount of $10.7 million
dollars. Demurrers have been sustained to all causes of
action in Plaintiff’s trice-amended complaints.
Plaintiff asks for several forms of
relief. None of his requests are
availing.
Plaintiff requests appointment of
counsel. (Motion, pp. 2, 4.) The appointment of counsel is a last resort
that the Court can adopt. The Court also
does not doubt that Mr. Ellington’s disabilities –not to mention the mere fact
that he is incarcerated – make it more difficult for him to bring his claims to
Court.
Mr. Ellington has adequately –
indeed ably – represented himself during the 15 hearings held by this Court over
the past four years. The Court has already
denied Plaintiff’s request for appointment of counsel; there are no new facts
adduced in Plaintiff’s latest motion that suggests that the Court should
reconsider its previous decision.
Plaintiff requests leave to amend his complaint. Plaintiff has already filed a Complaint (on 4/2/2018),
a First Amended Complaint (on 11/14/2019), a Second Amended Complaint (on
10/21/2021), and a Third Amended Complaint (on 3/10/2022). As indicated above, a demurrer has been
sustained without leave to amend as to the remaining causes of action in Plaintiff’s
Third Amended Complaint. This case was
filed over four years ago. Plaintiff Ellington has had meaningful access
to the Court. Enough is enough. “Somewhere along the line, litigation must
cease.” (In re Marriage of Crook (1992) 2 Cal.App.4th 1606, 1613.)
Plaintiff has requested that the
Court order that he be given a laptop computer.
(Motion, p. 6, § 8.) The Court
declines this request.
Plaintiff has requested that this
Court transfer him to a more appropriate facility or program (Motion, p. 5, §7.) Plaintiff has also requested that this Court
release him from custody. (Motion, p. 6, §8.) These requests are not within the
power of this civil Court to grant.
II.
CONCLUSION
Mr. Ellington’s Motion is DENIED.