Hawthorne v. Kernan et al

Filing 87

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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CARLOS A. HAWTHORNE, Plaintiff, 8 9 v. 10 A YANEZ, et al., United States District Court Northern District of California 11 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 12 13 Plaintiff, an inmate at California Medical Facility, has filed this pro se action pursuant to 14 42 U.S.C. § 1983. For the reasons set forth below, the Court DENIES as moot Plaintiff’s request 15 for an extension of time to oppose defendant Swensen’s motion, Dkt. No. 83, and DENIES 16 Plaintiff’s request for appointment of counsel, Dkt. No. 84. 17 Plaintiff has informed the Court that he has been recently transferred to California Medical 18 Facility on or about March 7, 2022, where he has been housed in administrative segregation and 19 does not yet have access to his property or the law library. Dkt. Nos. 83, 84. He states that 20 appointment of counsel is needed because he relies on legal self-manuals to prosecute this case; he 21 must handwrite his motions which interferes with judicial economy and the time constraints; he 22 currently has no work tools or legal materials at his disposal; this action requires extensive 23 research, filing of confidential documentation, and access to evidence that Plaintiff cannot acquire; 24 he can state a cause of action with assistance of counsel; counsel would allow him to meet the 25 Court’s deadlines in a timely manner; Plaintiff is only allowed access to his property every thirty 26 days; and Plaintiff is already past the court’s deadlines. Dkt. No. 84. Plaintiff requests a 120-day 27 extension of time to respond to defendant Swensen’s motions and declarations. Dkt. Nos. 83, 84. 28 Plaintiff’s request for an extension of time to respond to defendant Swensen’s motions and 1 declarations is DENIED as moot. Dkt. Nos. 83, 84. The Court has denied defendant Swensen’s 2 motion to dismiss, and ordered Defendants to file a dispositive motion by May 6, 2022 on the four 3 remaining claims in this action. Dkt. No. 81. Plaintiff’s request for appointment of counsel is DENIED. “Generally, a person has no 4 right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). “However, 6 a court may under ‘exceptional circumstances’ appoint counsel for indigent civil litigants pursuant 7 to 28 U.S.C. § 1915(e)(1).” Id. (citing Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th 8 Cir. 2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128 (2005)). A finding of 9 “exceptional circumstances” requires an evaluation of the likelihood of the plaintiff’s success on 10 the merits and of the plaintiff’s ability to articulate his claims pro se in light of the complexity of 11 United States District Court Northern District of California 5 the legal issues involved. See Agyeman, 390 F.3d at 1103. Both factors must be viewed together 12 before reaching a decision on a request for counsel under § 1915. See id. The likelihood of 13 Plaintiff’s success on the merits is uncertain; Plaintiff has ably articulated his claims pro se so far 14 despite the difficulties and restrictions he has described; and the legal issues do not appear unduly 15 complex. In addition, Plaintiff’s lack of access to his legal materials and the law library appears to 16 be temporary until he appears before the Institutional Classification Committee on March 17, 17 2022, and the next round of briefing will not take place until May 2022. To the extent that 18 Plaintiff seeks to access confidential documents to support his case, it is unclear how confidential 19 documents could be viewed by an attorney but not his or her client, except in certain limited 20 circumstances which do not appear to apply here. If the documents are confidential because they 21 are Plaintiff’s private medical records, Plaintiff would have access to such documents. The need 22 to rely on legal self-help manuals and handwrite pleadings does not constitute exceptional 23 circumstances; and the Court has already found that Plaintiff has stated cognizable causes of 24 action. Plaintiff has failed to demonstrate exceptional circumstances that would require 25 appointment of counsel. Plaintiff’s requests for appointment of counsel are DENIED without 26 prejudice to the Court’s sua sponte appointment of counsel should circumstances so require. 27 // 28 // 2 1 This order terminates Dkt. Nos. 83, 84. 2 IT IS SO ORDERED. 3 4 5 Dated: 4/11/2022 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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