Sims v. Sayre et al

Filing 34

ORDER by Judge ARMSTRONG denying 29 Motion to Appoint Counsel ; denying 31 Motion to Appoint Counsel (lrc, COURT STAFF) (Filed on 5/21/2010)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. DR. MICHAEL SAYRE, et al., Defendants. / DERRICK SIMS, Plaintiff, No. C 08-01691 SBA (PR) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND DENYING MOTION FOR ORDER TO ALLOW LEGAL ASSISTANCE FROM PRISONER JAIL HOUSE LAWYERS WHILE COURT CONSIDERS TO ASSIGN COUNSEL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Plaintiff has filed a motion for appointment of counsel to represent him in this action. He has also filed a "Motion for Order to Allow Legal Assistance from Prisoner Jail House Lawyers While Court Considers to Assign Counsel." 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 Soc. Servs., 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25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The court may ask counsel to represent an indigent litigant under 28 U.S.C. § 1915 only in "exceptional circumstances," the determination of which requires an evaluation of both (1) the likelihood of success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See id. 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

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

these factors must be viewed together before reaching a decision on a request for counsel under § 1915. See id. The Court is unable to assess at this time whether exceptional circumstances exist which would warrant seeking volunteer counsel to accept a pro bono appointment. The proceedings are at an early stage and it is premature for the Court to determine Plaintiff's likelihood of success on the merits. Moreover, Plaintiff has been able to articulate his claims adequately pro se in light of the complexity of the issues involved. See Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Accordingly, the request for appointment of counsel (docket no. 29) at this time is DENIED. The Court will consider appointment of counsel later in the proceedings, after Defendants have filed their dispositive motion and the Court has a better understanding of the procedural and substantive matters at issue. Therefore, Plaintiff may file a renewed motion for the appointment of counsel after Defendants' dispositive motion has been filed. If the Court decides that appointment of counsel is warranted at that time, it will seek volunteer counsel to agree to represent Plaintiff pro bono. Because the Court has denied Plaintiff's request for appointment of counsel, the Court also DENIES his "Motion for Order to Allow Legal Assistance from Prisoner Jail House Lawyers While Court Considers to Assign Counsel" (docket no. 31). This Order terminates Docket nos. 29 and 31. IT IS SO ORDERED. DATED: 5/17/10 SAUNDRA BROWN ARMSTRONG United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DERRICK SIMS, Plaintiff, v. MICHAEL SAYRE et al, Defendant. /

Case Number: CV08-01691 SBA 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 May 21, 2010, 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.

Derrick D. Sims J-20913 Pelican Bay State Prison P.O. Box 7500 Crescent City, CA 95531 Dated: May 21, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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