Fayed v. Davis

Opinion

1 2 3 6 7 JAMES MICHAEL FAYED, Case No. 21-cv-08206-JST

8 Plaintiff, ORDER DENYING RENEWED 9 v. REQUEST FOR APPOINTMENT OF COUNSEL Re: ECF No. 41 Defendant. 11

12 13 Plaintiff, an inmate at San Quentin State Prison (“SQSP”) has filed a pro se action 14 pursuant to 42 U.S.C. § 1983. Now pending before the Court is Plaintiff’s fourth request for 15 appointment of counsel. ECF No. 41. The Court denied Plaintiff’s prior requests for appointment 16 of counsel for lack of exceptional circumstances. ECF Nos. 24, 40. 17 Plaintiff has filed a renewed request for appointment of counsel, arguing that counsel is 18 warned because his circumstances have changed significantly. ECF No. 41. Specifically, Plaintiff 19 reports that he has recently been diagnosed with rheumatoid arthritis, which results in flare-ups 20 where he sometimes falls and hurts himself; requires him to take medications that have side 21 effects, including weakness, fatigue, decline in mental capacity; necessitates use of a cane for 22 short distances and a wheelchair for longer distances; and has caused physical deterioration and 23 stiffness that make daily activities of living challenging to carry out. Due to the rheumatoid 24 arthritis, writing causes Plaintiff discomfort and suffering, and Plaintiff has no access to 25 computers, printers, word processors, typewriters, or paralegal assistance. Plaintiff requires a 26 wheelchair to carry out his law library visits, and being out in inclement weather for law library 27 visits aggravates his rheumatoid arthritis. In addition, recently Plaintiff has been subjected to 1 another prison, thereby limiting the amount of legal papers he can keep in his cell. See generally 2 ECFNo. 41. 3 There is no constitutional right to counsel in a civil case unless an indigent litigant may 4 } lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Services, 452 U.S. 5 18, 25 (1981). The United States Supreme Court has ruled that district courts lack authority to 6 require counsel to represent indigent prisoners in § 1983 cases. See Mallard vy. United States Dist. 7 Ct., 490 U.S. 296, 298 (1989). However, a court “may request an attorney to represent any person 8 unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Appointing counsel is within the court’s 9 discretion and is granted only in exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 10 1328, 1331 (9th Cir. 1986) (referring to 28 U.S.C. § 1915(d), which was subsequently renumbered 11 to 28 U.S.C. § 1915(e)(1)). A finding of “exceptional circumstances” requires an evaluation of the 12 likelihood of the plaintiffs success on the merits and an evaluation of the plaintiffs ability to 13 articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman v. 14 Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Both of these factors must be 3 15 viewed together before reaching a decision on a request for counsel under § 1915. See id. At this a 16 || stage of the action, it is unclear whether Plaintiff can succeed on the merits. The Court’s 3 17 determination that that the operative complaint stated a cognizable claim is not equivalent to 18 finding that Plaintiff is likely to succeed on the merits of that claim. The request for appointment 19 of counsel is therefore DENIED for lack of exceptional circumstances without prejudice to the 20 Court sua sponte appointing counsel in the future should the circumstances so require. ECF No. 21 Al. 22 This order terminates ECF No. 41. 24 Dated: February 20, 2024 .

2° JON S. TIGAR 26 nited States District Judge 27 28