Case 5:21-cv-00127-JGB-AS Document 47 Filed 01/25/22 Page 1 of 6 Page ID #:240

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BOBBY WILLARD FULLER, Jr., ) NO. EDCV 21-00127 JGB (AS) ) 12 Plaintiff, ) ) ORDER ACCEPTING FINDINGS, 13 v. ) ) CONCLUSIONS AND RECOMMENDATIONS 14 MONA S. HOUSTON, et al., ) ) OF UNITED STATES MAGISTRATE JUDGE 15 Defendants. ) ) 16 17 Pursuant to 28 U.S.C. section 636, the Court has reviewed the 18 Complaint and all of the records herein, including the Report and 19 Recommendation of a United States Magistrate Judge, Plaintiff’s 20 Objections to the Report and Recommendation, and Defendants’ Response 21 to Plaintiff’s Objections. After having made a de novo determination 22 of the portions of the Report and Recommendation to which Objections 23 were directed, the Court finds that Plaintiff’s Objections to the 24 Report and Recommendation are without merit and do not cause the Court 25 to reconsider its decision to accept the Magistrate Judge’s conclusions 26 and recommendations. 27 28 Case 5:21-cv-00127-JGB-AS Document 47 Filed 01/25/22 Page 2 of 6 Page ID #:241

1 Plaintiff initially objects to the recommendation to deny his 2 Request for Judicial Notice (Dkt. No. 38), and he renews his Request 3 for Judicial Notice in his Objections. (Objections at 1, 6-8). The 4 Report and Recommendation recommended denying Plaintiff’s Request for 5 Judicial Notice for two reasons: (1) because Plaintiff had not provided 6 the Court with the majority of documents for which he sought judicial 7 notice; and (2) with regard to the only document Plaintiff partially 8 provided the Court – a California Office of the Inspector General’s 9 report entitled “COVID-19 Review Series Part One Inconsistent Screening 10 Practices May Have Increased the Risk of COVID-19 Within California’s 11 Prison System” (“OIG’s COVID-19 Report”) – Plaintiff improperly sought 12 judicial notice of disputed facts contained in the document. (See 13 Report and Recommendation at 12-13 n.4). In his Objections, Plaintiff 14 attempts to rectify the first issue by providing “a dramatically 15 smaller set” of documents for which he seeks judicial notice. 16 (Objections at 1 & Exhs. 1-6). However, this does not address the 17 second issue the Report and Recommendation noted – that the facts 18 contained in the OIG’s COVID-19 Report are not the proper subject of 19 judicial notice. See Doe v. Regents of the Univ. of Cal., __ F.4th __, 20 2022 WL 98135, *10 n.15 (9th Cir. 2022) (“We cannot take judicial 21 notice of disputed facts contained in public records, which is what it 22 appears the Regents asks us to do here.”); Khoja v. Orexigen 23 Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (A “‘court may 24 take judicial notice of matters of public record without converting a 25 motion to dismiss into a motion for summary judgment.’ But a court 26 cannot take judicial notice of disputed facts contained in such public 27 records.” (citation omitted)). Nor do the other documents attached to 28 2 Case 5:21-cv-00127-JGB-AS Document 47 Filed 01/25/22 Page 3 of 6 Page ID #:242

1 Plaintiff’s Objections alter this result. Accordingly, Plaintiff’s 2 renewed Request for Judicial Notice is denied.1 3 4 Plaintiff also requests leave to add Correctional Officer A. Angel 5 as a defendant. (Objections at 8-9). Plaintiff’s request is granted. 6 Plaintiff may include Correctional Officer A. Angel as a defendant – in 7 his or her individual capacity only – in any First Amended Complaint 8 Plaintiff files. 9 10 Additionally, Plaintiff asks that the Court appoint him counsel, 11 arguing that given current law library access issues due to the Omicron 12 variant, dismissing his Complaint with leave to amend without 13 appointing counsel is tantamount to violating his right to court 14 access. (Objections at 8-10). 15 16 There is no constitutional right to appointed counsel in a civil 17 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981); 18 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The decision to 19 appoint counsel is within “the sound discretion of the trial court and 20 is granted only in exceptional circumstances.” Agyeman v. Corr. Corp. 21 of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation and internal 22 quotation marks omitted). To decide whether exceptional circumstances 23 24 1 Of course, merely because the Court declines to take judicial 25 notice of facts contained in a document does not mean that Plaintiff may not make those allegations directly in any amended complaint he 26 files. Nor does it mean that Plaintiff cannot, in the future, rely on the document to provide evidentiary support for his claims, such as on 27 summary judgment. See Doe, __ F.4th at __, 2022 WL 98135 at *10 n.15 (denying Regents’ request for judicial notice “without prejudice to the 28 Regents seeking admission of these documents in further proceedings”). 3 Case 5:21-cv-00127-JGB-AS Document 47 Filed 01/25/22 Page 4 of 6 Page ID #:243

1 exist, the court must evaluate both “the likelihood of success on the 2 merits and the ability of the [plaintiff] to articulate his claims pro 3 se in light of the complexity of the legal issues involved.” Terrell 4 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (citations and internal 5 quotation marks omitted); Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 6 2014). 7 8 Plaintiff has not met his burden of showing exceptional 9 circumstances to support appointment of counsel. Palmer, 560 F.3d at 10 970. “Because plaintiff failed to state a cognizable civil rights 11 claim, the court is unable to determine whether plaintiff’s underlying 12 claims have merit; therefore, appointment of counsel is premature.” 13 Gomez v. CDCR, 2017 WL 3208717, *6 (E.D. Cal. 2017); see also 14 Laferriere v. Bodwell, 2021 WL 4439878, *2 (W.D. Wash. 2021) (“[A]t 15 this point plaintiff has not yet submitted a complaint that asserts 16 viable claims. It is therefore premature to assess the likelihood of 17 success on the merits or whether the issues in this case are 18 necessarily complex.”). Moreover, Plaintiff’s complaints about 19 “difficulties which any litigant would have in proceeding pro se” – 20 such as limited law library access due to the effects of COVID-19 – “do 21 not indicate exceptional factors.” Wood v. Housewright, 900 F.2d 1332, 22 1335-36 (9th Cir. 1990); see also Foster v. Kaweak Delta Med. Ctr., 23 2021 WL 5566563, *3 (E.D. Cal. 2021) (“Circumstances caused by the 24 Covid-19 pandemic do not establish exceptional circumstances.”); 25 Laferriere, 2021 WL 4439878 at *2 (“Plaintiff indicates that due to 26 Covid-19-related restrictions he has had difficulty accessing the law 27 library. But this is not an exceptional circumstance that sets 28 plaintiff aside from any other prisoner litigant during this pandemic.” 4 Case 5:21-cv-00127-JGB-AS Document 47 Filed 01/25/22 Page 5 of 6 Page ID #:244

1 (citation omitted)); Rodriguez v. United States, 2021 WL 1172777, *1 2 (E.D. Cal. 2021) (“Circumstances common to most prisoners, such as lack 3 of legal education and limited law library access, do not establish 4 exceptional circumstances that would warrant a request for voluntary 5 assistance of counsel. In addition, the challenges presented by the 6 COVID-19 pandemic do not establish exceptional circumstances.”). 7 Accordingly, Plaintiff’s request for appointment of counsel is denied 8 without prejudice. However, Plaintiff is free to seek a reasonable 9 extension of time if circumstances prevent him from timely filing a 10 First Amended Complaint. See Hemingway v. CSP-LAC, 2021 WL 3710525, *2 11 (C.D. Cal. 2021) (denying request for appointment of counsel when 12 plaintiff failed to show exceptional circumstances and because the 13 “Court is willing to grant Plaintiff any reasonable extensions of time 14 that he may request on the basis of the COVID-19 lockdowns”); 15 Laferriere, 2021 WL 4439878 at *2 (“[A]ny delays caused by insufficient 16 library access may be addressed by a motion for an extension of an 17 affected deadline.”). Nothing in this Order is intended to preclude 18 Plaintiff from retaining counsel on his own. 19 20 Plaintiff’s remaining objections are without merit and do not 21 warrant further discussion. 22 23 IT IS ORDERED that (1) Plaintiff’s Requests for Judicial Notice 24 (Dkt. Nos. 38, 45) are DENIED; (2) Plaintiff’s Request for the 25 Appointment of Counsel is DENIED WITHOUT PREJUDICE (Dkt. No. 45); (3) 26 Defendants’ Motion to Dismiss (Dkt. No. 32) is GRANTED and (a) 27 Plaintiff’s state law claims are dismissed without prejudice; (b) 28 Plaintiff’s claims against Defendants in their official capacities are 5 ase 5:21-cv-00127-JGB-AS Document 47 Filed 01/25/22 Page6of6 Page ID #:245

1 dismissed without leave to amend; and (c) Plaintiff’s claims against 2 Defendants in their individual capacities are dismissed with leave to 3 amend; and (4) Plaintiff shall file a First Amended Complaint no later 4 than 30 days from the date of this Order. The First Amended Complaint 5 may add Correctional Officer A. Angel as a defendant in his or her 6 individual capacity only. 8 Plaintiff is cautioned that failure to timely file a First Amended 9 Complaint, or failure to correct the deficiencies described in the 10 Report and Recommendation, will result in dismissal of this action. 11 12 IT IS FURTHER ORDERED that the Clerk serve copies of this Order on 13 Plaintiff at his current address of record. 14 15 DATED: January 25, 2022 16

18 3 cast —

JESUS G. BERNAL

19 UNIF® STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28