Fulford v. Griffith et al

Filing 27

ORDER by Magistrate Judge Maria-Elena James denying 26 Motion to Appoint Counsel. (Attachments: # 1 Certificate/Proof of Service)(rmm2S, COURT STAFF) (Filed on 4/19/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FRED FULFORD, Plaintiff, 8 v. 9 10 ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL Re: Dkt. No. 26 DON M. GRIFFITH, Defendant. 11 United States District Court Northern District of California Case No. 16-cv-00770-MEJ 12 Plaintiff, a California prisoner currently incarcerated at California Medical Facility, filed 13 14 this pro se civil rights action under 42 U.S.C. § 1983 alleging that Dr. Griffith was deliberately 15 indifferent to his serious medical need. Now pending before the Court is Plaintiff’s request for 16 appointment of counsel. Dkt. No. 26. Plaintiff argues that appointment of counsel is necessary 17 because he is indigent, he cannot locate counsel on his own, Dr. Griffith has not complied with the 18 Court’s order to file a dispositive motion, and Dr. Griffith has not responded to Plaintiff’s letter. 19 Id. 20 There is no constitutional right to counsel in a civil case unless an indigent litigant may 21 lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S. 22 18, 25 (1981). The decision to request counsel to represent an indigent litigant under § 1915 is 23 within “the sound discretion of the trial court and is granted only in exceptional circumstances.” 24 Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the “exceptional 25 circumstances” of the plaintiff seeking assistance requires an evaluation of the likelihood of the 26 plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his claims 27 pro se in light of the complexity of the legal issues involved. See Agyeman v. Corrections Corp. 28 of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Both of these factors must be viewed together 1 before reaching a decision on a request for counsel under § 1915. Wilborn v. Escalderon, 789 2 F.2d 1328, 1331 (9th Cir. 1986). Plaintiff’s request for appointment of counsel is DENIED. The Court finds that there are 3 no exceptional circumstances requiring the appointment of counsel.1 Plaintiff has ably litigated 5 this action pro se thus far. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no 6 constitutional right to counsel in § 1983 action), withdrawn in part on other grounds on reh’g en 7 banc, 154 F.3d 952 (9th Cir. 1998) (en banc) (where plaintiff’s pursuit of discovery was 8 comprehensive and focused, and his papers were generally articulate and organized, district court 9 did not abuse discretion in denying request for counsel); see also Wilborn, 789 F.2d at 1331 (that 10 plaintiff may well have fared better with assistance of counsel not enough). However, the Court 11 United States District Court Northern District of California 4 will consider appointment of counsel on its own motion, and seek volunteer counsel to agree to 12 represent plaintiff pro bono, if it determines at a later time in the proceedings that appointment of 13 counsel is warranted. 14 This order terminates Dkt. No. 26. 15 IT IS SO ORDERED. 16 17 Dated: April 19, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 1 28 The Court notes that, contrary to Plaintiff’s allegation, Dr. Griffith has timely filed a dispositive motion. Dkt. No. 23. 2

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