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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FRED FULFORD,
Plaintiff,

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v.

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ORDER DENYING REQUEST FOR
APPOINTMENT OF COUNSEL
Re: Dkt. No. 26

DON M. GRIFFITH,
Defendant.

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United States District Court
Northern District of California

Case No. 16-cv-00770-MEJ

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Plaintiff, a California prisoner currently incarcerated at California Medical Facility, filed

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this pro se civil rights action under 42 U.S.C. § 1983 alleging that Dr. Griffith was deliberately

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indifferent to his serious medical need. Now pending before the Court is Plaintiff’s request for

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appointment of counsel. Dkt. No. 26. Plaintiff argues that appointment of counsel is necessary

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because he is indigent, he cannot locate counsel on his own, Dr. Griffith has not complied with the

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Court’s order to file a dispositive motion, and Dr. Griffith has not responded to Plaintiff’s letter.

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Id.

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There is no constitutional right to counsel in a civil case unless an indigent litigant may

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lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S.

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18, 25 (1981). The decision to request counsel to represent an indigent litigant under § 1915 is

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within “the sound discretion of the trial court and is granted only in exceptional circumstances.”

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Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the “exceptional

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circumstances” of the plaintiff seeking assistance requires an evaluation of the likelihood of the

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plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his claims

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pro se in light of the complexity of the legal issues involved. See Agyeman v. Corrections Corp.

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of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Both of these factors must be viewed together

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before reaching a decision on a request for counsel under § 1915. Wilborn v. Escalderon, 789

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F.2d 1328, 1331 (9th Cir. 1986).
Plaintiff’s request for appointment of counsel is DENIED. The Court finds that there are

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no exceptional circumstances requiring the appointment of counsel.1 Plaintiff has ably litigated

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this action pro se thus far. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no

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constitutional right to counsel in § 1983 action), withdrawn in part on other grounds on reh’g en

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banc, 154 F.3d 952 (9th Cir. 1998) (en banc) (where plaintiff’s pursuit of discovery was

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comprehensive and focused, and his papers were generally articulate and organized, district court

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did not abuse discretion in denying request for counsel); see also Wilborn, 789 F.2d at 1331 (that

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plaintiff may well have fared better with assistance of counsel not enough). However, the Court

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United States District Court
Northern District of California

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will consider appointment of counsel on its own motion, and seek volunteer counsel to agree to

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represent plaintiff pro bono, if it determines at a later time in the proceedings that appointment of

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counsel is warranted.

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This order terminates Dkt. No. 26.

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IT IS SO ORDERED.

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Dated: April 19, 2017
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MARIA-ELENA JAMES
United States Magistrate Judge

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The Court notes that, contrary to Plaintiff’s allegation, Dr. Griffith has timely filed a dispositive
motion. Dkt. No. 23.
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