1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANK J. FERNANDEZ, Case No. 22-cv-0446-BAS-VET

12 Plaintiff, ORDER: 13 v. (1) TERMINATING AS MOOT 14 E. DUARTE, ISU Sergeant, MOTION FOR SUMMARY JUDGMENT (ECF No. 98); 15 Defendant. 16 (2) SETTING BRIEFING SCHEDULE ON AMENDED 17 MOTION FOR SUMMARY 18 JUDGMENT (ECF No. 163); AND 19 (3) DENYING MOTION TO 20 APPOINT COUNSEL 21 (ECF No. 131) 22

23 Presently before the Court are Defendant E. Duarte’s Motion for Summary Judgment 24 (ECF No. 98) and Amended Motion for Summary Judgment (ECF No. 163). Plaintiff 25 Frank J. Fernandez is also seeking appointment of counsel. (ECF No. 131.) For the 26 following reasons, the Court terminates as moot the Motion for Summary Judgment, sets 27 a briefing schedule for the Amended Motion, and denies without prejudice Plaintiff’s 28 Motion to Appoint Counsel. 1 I. Amended Motion for Summary Judgment 2 Defendant is seeking summary judgment in this prisoner civil rights action. Initially, 3 Defendant filed a Motion for Summary Judgment with proposed redactions. (ECF No. 98.) 4 Defendant asked the Court to keep the redacted information secret from not only the public 5 but also Plaintiff. Ultimately, after an in camera hearing, the Court denied Defendant’s 6 Motion to Seal. (ECF No. 158; see also ECF Nos. 142, 147.) The Court ordered Defendant 7 to file a revised motion and present to the Court and Plaintiff any evidence Defendant 8 intended to use for this request. (ECF No. 158.) 9 Accordingly, Defendant filed an Amended Motion for Summary Judgment. (ECF 10 No. 163.) And in light of this Amended Motion, the Court terminates as moot the initial 11 Motion. 12 However, the Court notes that the Amended Motion still contains redactions, albeit 13 narrower ones than the initial Motion. (Compare ECF No. 163-1, with ECF No. 98-1.) 14 Hence, there is still some information that is being hidden. The Court is amenable to 15 shielding that information from the public, but it is unclear whether Plaintiff has ever been 16 provided an unredacted copy of the Amended Motion or its supporting materials. (See 17 ECF No. 163 at 3–4.) If Defendant wishes for the Court to rely on any of the redacted 18 information, he must file a proof of service on the docket confirming Plaintiff has been 19 served with unredacted copies of Defendant’s Amended Motion for Summary Judgment 20 and the supporting exhibits. Defendant must do so no later than September 3, 2025. 21 Otherwise, the Court will disregard any of the redacted information and direct the Clerk to 22 reject and return any unredacted material that was previously lodged under seal in 23 connection with Defendant’s summary judgment motion. 24 II. Briefing Schedule for Amended Motion 25 Now that Plaintiff has the benefit of the Amended Motion for Summary Judgment, 26 he will need the opportunity to respond. The Court sets the following briefing schedule for 27 Defendant’s Amended Motion: 28 1 1. Plaintiff must file any opposition to the Amended Motion no later than 2 September 24, 2025. 3 2. Defendant’s reply, if any, must be filed no later than October 8, 2025. 4 III. Motion to Appoint Counsel 5 Also before the Court is Plaintiff’s Motion to Appoint Counsel. (ECF No. 131.) The 6 Court previously denied this request on several occasions. (ECF Nos. 5, 22, 28, 57.) 7 The Court incorporates its discussion from the prior orders. To recap, there is no 8 constitutional right to counsel in a civil case, and the decision to appoint counsel under 28

(e)(1) is within “the sound discretion of the trial court and is granted only in 10 exceptional circumstances.” Agyeman v. Corr. Corp. of Am.,

, 1103 (9th 11 Cir. 2004); Terrell v. Brewer,

(9th Cir. 1991) (noting that only 12 “exceptional circumstances” support such a discretionary appointment). Exceptional 13 circumstances exist where there is a cumulative showing of both a likelihood of success on 14 the merits and an inability of the pro se litigant to articulate his claims in light of their legal 15 complexity. See Harrington v. Scribner,

(9th Cir. 2015); Palmer v. 16 Valdez,

(9th Cir. 2009). 17 Plaintiff has demonstrated an ability to articulate his claims on the merits and to take 18 his case thus far without counsel. Further, as Plaintiff renews his request for counsel at the 19 summary judgment stage, the likelihood of success on the merits remains undetermined. 20 See Cano v. Taylor,

(9th Cir. 2014) (affirming denial of counsel where 21 prisoner could articulate his claims in light of the complexity of the issues involved, but 22 did not show likelihood of success on the merits because the prisoner did not include any 23 evidence indicating such); see also Dickey v. Strayhorn, No. 3:17-cv-00546-JLS-JLB, 24

, at *1 (S.D. Cal. July 21, 2017), reconsideration denied,

4271975, at *1 (S.D. Cal. Sept. 26, 2017) (“To demonstrate that he has a likelihood of 26 success at trial, Plaintiff must do more than merely allege that one of his constitutional 27 rights was violated. He must provide evidence to the effect that he has a likelihood of 28 success on the merits of his allegations.”). 1 Thus, having considered Plaintiff's renewed motion, the Court confirms that no 2 ||“exceptional circumstances” exist at this stage of the case. The Court therefore denies 3 || without prejudice Plaintiff's Motion to Appoint Counsel. 4||IV. Conclusion 5 In light of the foregoing, the Court ORDERS as follows: 6 1. Defendant’s Motion for Summary Judgment (ECF No. 98) □□□□ 7 TERMINATED AS MOOT. 8 2. If Defendant wants the Court to consider any of the redacted information 9 found in his Amended Motion for Summary Judgment (ECF No. 163), then 10 Defendant must file a proof of service showing that Plaintiff has been 11 provided unredacted copies of the Amended Motion and its attachments no 12 later than September 3, 2025. 13 3. Plaintiff must file any opposition to the Amended Motion for Summary 14 Judgment no later than September 24, 2025. Defendant must file any reply 15 no later than October 8, 2025. 16 4. Plaintiffs Motion to Appoint Counsel is DENIED WITHOUT 17 PREJUDICE (ECF No. 131). 18 IT IS SO ORDERED. 19 20 || DATED: August 27, 2025 yatta Bahar 21 Cynthia Bashant, Chief Judge 9 United States District Court

23 24 25 26 27 28 4A.