Callion v. Adams et al

Filing 69

ORDER by Judge Haywood S. Gilliam, Jr. Denying 63 REQUEST FOR APPOINTMENT OF COUNSEL (Attachments: # 1 Certificate/Proof of Service).(ndrS, COURT STAFF) (Filed on 3/31/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES GREGORY CALLION,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No. 14-cv-03716-HSG
ORDER DENYING REQUEST FOR
APPOINTMENT OF COUNSEL
Re: Dkt. No. 63

EDWARD BIRDSONG, et al.,
Defendants.

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Plaintiff, a California prisoner currently incarcerated at R.J. Donovan Correctional Facility,

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filed this pro se civil rights action under 42 U.S.C. § 1983. Now pending before the Court is

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Plaintiff’s request for appointment of counsel. Dkt. No. 63. For the reasons set forth below, this

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request is DENIED.

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Plaintiff requests limited appointment of counsel for the sole purpose of identifying Dr.

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Birdsong’s successor or representative so that he may continue this action against Dr. Birdsong.

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Plaintiff argues that exceptional circumstances exist that warrant appointment of counsel.

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Specifically, Plaintiff states that prison officials will refuse to provide him with this information

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because of prison safety and security concerns, Dkt. No. 63 at 1, and that it is impossible for him

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to obtain this information without assistance of counsel, id. at 2.

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The decision to appoint counsel to represent an indigent litigant under § 1915 is within

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

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v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of “exceptional circumstances” as to

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the plaintiff seeking assistance requires an evaluation of the likelihood of the plaintiff’s success on

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the merits and an evaluation of the plaintiff’s ability to articulate his claims pro se in light of the

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complexity of the legal issues involved. See Agyeman v. Corrections Corp. of America, 390 F.3d

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1101, 1103 (9th Cir. 2004). Both of these factors must be viewed together before reaching a

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decision on a request for counsel under § 1915. See Wilborn v. Escalderon, 789 F.2d 1328, 1331

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(9th Cir. 1986). Neither the need for discovery nor the fact that the pro se litigant would be better

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served with the assistance of counsel necessarily makes the issues involved complex. Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), 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); Wilborn, 789 F.2d at 1331 (that plaintiff

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may well have fared better with assistance of counsel not enough).
The Court finds that Plaintiff’s situation does not constitute the type of exceptional

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United States District Court
Northern District of California

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circumstances that warrant appointment of counsel. The Court notes that Plaintiff has ably

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articulated his claims throughout this litigation. He has filed multiple pleadings that have clearly

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set forth his claims. Plaintiff’s incarcerated status and its accompanying limitations on gathering

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information do not constitute exceptional circumstances. Cf. Rand, 113 F.3d at 1525 (test for

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appointment of counsel is not whether plaintiff would have fared better in securing discovery;

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rather plaintiff “must show that because of the complexity of the claims he was unable to articulate

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his positions”). Also, the information sought by Plaintiff is unrelated to the legal merits of this

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action. The CDCR is not more likely to release Dr. Birdsong’s home address because the request

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is made by counsel for Plaintiff rather than by Plaintiff himself. Plaintiff’s request would require

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court-appointed counsel to perform the function of a private investigator. It is Plaintiff’s

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responsibility, and not the Court’s, to locate Dr. Birdsong’s successor or representative. Cf.

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Cramer v. Target Corp., No. 1:08-CV-1693-OWWSKO, 2010 WL 1849908, at *2 (E.D. Cal. May

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6, 2010) (pro se plaintiff responsible for determining mailing address of Target’s former employee

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so that the U.S. Marshal could effect service; neither Target nor the U.S. Marshal has a duty to

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investigate where defendant might be located).

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For the foregoing reasons, Plaintiff’s request for appointment of counsel is DENIED.

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This order terminates Dkt. No. 63.

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IT IS SO ORDERED.

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Dated: 3/31/2017
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HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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