Hawthorne v. Kernan et al
Filing
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ORDER by Judge Haywood S. Gilliam, Jr.DENYING 84 REQUEST FOR APPOINTMENT OF COUNSEL, DENYING REQUEST FOR EXTENSION OF TIME. (ndr, COURT STAFF) (Filed on 4/11/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CARLOS A. HAWTHORNE,
Plaintiff,
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v.
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A YANEZ, et al.,
United States District Court
Northern District of California
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Defendants.
Case No. 17-cv-04960-HSG
ORDER DENYING REQUEST FOR
APPOINTMENT OF COUNSEL,
DENYING REQUEST FOR
EXTENSION OF TIME
Re: Dkt. Nos. 83, 84
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Plaintiff, an inmate at California Medical Facility, has filed this pro se action pursuant to
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42 U.S.C. § 1983. For the reasons set forth below, the Court DENIES as moot Plaintiff’s request
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for an extension of time to oppose defendant Swensen’s motion, Dkt. No. 83, and DENIES
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Plaintiff’s request for appointment of counsel, Dkt. No. 84.
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Plaintiff has informed the Court that he has been recently transferred to California Medical
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Facility on or about March 7, 2022, where he has been housed in administrative segregation and
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does not yet have access to his property or the law library. Dkt. Nos. 83, 84. He states that
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appointment of counsel is needed because he relies on legal self-manuals to prosecute this case; he
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must handwrite his motions which interferes with judicial economy and the time constraints; he
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currently has no work tools or legal materials at his disposal; this action requires extensive
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research, filing of confidential documentation, and access to evidence that Plaintiff cannot acquire;
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he can state a cause of action with assistance of counsel; counsel would allow him to meet the
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Court’s deadlines in a timely manner; Plaintiff is only allowed access to his property every thirty
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days; and Plaintiff is already past the court’s deadlines. Dkt. No. 84. Plaintiff requests a 120-day
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extension of time to respond to defendant Swensen’s motions and declarations. Dkt. Nos. 83, 84.
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Plaintiff’s request for an extension of time to respond to defendant Swensen’s motions and
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declarations is DENIED as moot. Dkt. Nos. 83, 84. The Court has denied defendant Swensen’s
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motion to dismiss, and ordered Defendants to file a dispositive motion by May 6, 2022 on the four
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remaining claims in this action. Dkt. No. 81.
Plaintiff’s request for appointment of counsel is DENIED. “Generally, a person has no
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right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). “However,
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a court may under ‘exceptional circumstances’ appoint counsel for indigent civil litigants pursuant
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to 28 U.S.C. § 1915(e)(1).” Id. (citing Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th
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Cir. 2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128 (2005)). A finding of
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“exceptional circumstances” requires an evaluation of the likelihood of the plaintiff’s success on
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the merits and of the plaintiff’s ability to articulate his claims pro se in light of the complexity of
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United States District Court
Northern District of California
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the legal issues involved. See Agyeman, 390 F.3d at 1103. Both factors must be viewed together
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before reaching a decision on a request for counsel under § 1915. See id. The likelihood of
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Plaintiff’s success on the merits is uncertain; Plaintiff has ably articulated his claims pro se so far
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despite the difficulties and restrictions he has described; and the legal issues do not appear unduly
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complex. In addition, Plaintiff’s lack of access to his legal materials and the law library appears to
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be temporary until he appears before the Institutional Classification Committee on March 17,
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2022, and the next round of briefing will not take place until May 2022. To the extent that
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Plaintiff seeks to access confidential documents to support his case, it is unclear how confidential
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documents could be viewed by an attorney but not his or her client, except in certain limited
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circumstances which do not appear to apply here. If the documents are confidential because they
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are Plaintiff’s private medical records, Plaintiff would have access to such documents. The need
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to rely on legal self-help manuals and handwrite pleadings does not constitute exceptional
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circumstances; and the Court has already found that Plaintiff has stated cognizable causes of
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action. Plaintiff has failed to demonstrate exceptional circumstances that would require
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appointment of counsel. Plaintiff’s requests for appointment of counsel are DENIED without
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prejudice to the Court’s sua sponte appointment of counsel should circumstances so require.
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This order terminates Dkt. Nos. 83, 84.
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IT IS SO ORDERED.
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Dated: 4/11/2022
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge
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United States District Court
Northern District of California
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