Hernandez v. San Francisco Sheriff's Department et al

Filing 20

ORDER DENYING 12 Motion for Counsel. Signed by Judge Jeffrey S. White on 12/1/08. (jjo, COURT STAFF) (Filed on 12/1/2008)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. OFFICER SANCHEZ, et al., Defendants. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ORLANDO HERNANDEZ, Plaintiff, ) ) ) ) ) ) ) ) ) ) No. C 08-0640 JSW (PR) ORDER DENYING MOTION FOR COUNSEL (Docket No. 12) Plaintiff has filed a motion seeking appointment of counsel to represent him (docket no. 12). However, there is no constitutional right to counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). A court "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. 1915(e)(1). The decision to request counsel to represent an indigent litigant under 1915 is within "the sound discretion of the trial court and is granted only in exceptional circumstances." Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the "exceptional circumstances" of the plaintiff seeking assistance requires 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 pro se in light of the complexity of the legal 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 issues involved. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of these factors must be viewed together before reaching a decision on a request for counsel under 1915. See id. Plaintiff's motion is DENIED without prejudice, for want of exceptional circumstances (docket no. 12). Plaintiff will be provided with an additional thirty days from the date of this order in which to file a response to Defendants' pending motion. IT IS SO ORDERED. DATED: December 1, 2008 JEFFREY S. WHITE United States District Judge 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Orlando Hernandez 2304416 San Francisco County Jail 850 Bryant Street San Francisco, CA 94103 Dated: December 1, 2008 v. SF POLICE DEPT et al, Defendant. ORLANDO HERNANDEZ, Plaintiff, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case Number: CV08-00640 JSW CERTIFICATE OF SERVICE / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 1, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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