Harris v. Bullard

Opinion

ZACKARY T. HARRIS, Case No. 19-cv-06648-HSG

Plaintiff, ORDER DENYING THIRD REQUEST FOR APPOINTMENT OF COUNSEL; v. SUA SPONTE GRANTING FOURTH EXTENSION OF TIME TO FILE BRENDEN BULLARD, et al., SECOND AMENDED COMPLAINT Defendants. Re: Dkt. No. 26

Plaintiff, an inmate at Pelican Bay State Prison, has filed the instant pro se action pursuant to 42 U.S.C. § 1983. Plaintiff has recently filed a letter and declaration with the Court alleging that he has been denied access to his legal materials and the law library, and requesting appointment of counsel. Dkt. No. 26. For the reasons set forth below, the Court sua sponte GRANTS plaintiff an extension of time to September 18, 2020, to file his second amended complaint, and DENIES the request for appointment of counsel. On January 21, 2020, the Court dismissed the amended complaint with leave to amend because the complaint suffered from numerous deficiencies. Dkt. No. 16. In response to plaintiff’s complaints that he had been denied access to the law library and/or his legal materials, see Dkt. Nos. 17, 21, 24, the Court granted plaintiff multiple extensions of time to file his second amended complaint, see Dkt. Nos. 18, 23, 25. Plaintiff has also previously requested appointment of counsel. See Dkt. Nos. 15, 24. The Court has denied these requests for lack of exceptional circumstances. See Dkt. Nos. 16, 25. legal materials (which he since appears to have received), and denied access to the law library and the courts. Dkt. No. 26. He also alleges that he has suffered mental and physical health issues; had his life threatened by other inmates; and is locked up 24 hours a day and escorted everywhere he goes. He requests appointment of counsel because of the restrictions on his movement and because he is mentally and physically exhausted from what he has endured these past months. Dkt. No. 26. The Court sua sponte GRANTS plaintiff a fourth extension of time to September 18, 2020, to file his second amended complaint. The Court DENIES plaintiff’s third request for appointment of counsel for lack of exceptional circumstances. As explained previously, the decision to request counsel to represent an indigent litigant under § 1915 is within “the sound discretion of the trial court and is granted only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the “exceptional circumstances” of the plaintiff seeking assistance requires an evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his claims pro se in light of the complexity of the legal issues involved. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Both of these factors must be viewed together before reaching a decision on a request for counsel under § 1915. See id. The fact that the pro se litigant would be better served with the assistance of counsel does not necessarily qualify the issues involved as complex. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (that plaintiff may well have fared better with assistance of counsel not enough). The likelihood of plaintiff’s success on the merits is unclear at this stage; and plaintiff has ably prosecuted this case thus far, filing multiple motions despite limited or no access to the law library and his materials. Plaintiff’s motion requesting appointment of counsel is DENIED for lack of exceptional circumstances. Dkt. No. 26. This denial is without prejudice to the Court’s sua sponte appointment of counsel at a future date should the circumstances of this case warrant such appointment. 1 time to September 18, 2020, to file his second amended complaint, and DENIES the request for 2 appointment of counsel. Dkt. No. 26. 3 This order terminates Dkt. No. 26. 5 Dated: 8/3/2020 6 : HAYWOOD S. GILLIAM, JR. 7 United States District Judge 8 9 10 ll a 12

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