Harris v. Bullard ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ZACKARY T. HARRIS, Case No. 19-cv-06648-HSG 8 Plaintiff, ORDER DENYING THIRD REQUEST FOR APPOINTMENT OF COUNSEL; 9 v. SUA SPONTE GRANTING FOURTH EXTENSION OF TIME TO FILE 10 BRENDEN BULLARD, et al., SECOND AMENDED COMPLAINT 11 Defendants. Re: Dkt. No. 26 12 13 Plaintiff, an inmate at Pelican Bay State Prison, has filed the instant pro se action pursuant 14 to 42 U.S.C. § 1983. Plaintiff has recently filed a letter and declaration with the Court alleging 15 that he has been denied access to his legal materials and the law library, and requesting 16 appointment of counsel. Dkt. No. 26. For the reasons set forth below, the Court sua sponte 17 GRANTS plaintiff an extension of time to September 18, 2020, to file his second amended 18 complaint, and DENIES the request for appointment of counsel. 19 BACKGROUND 20 On January 21, 2020, the Court dismissed the amended complaint with leave to amend 21 because the complaint suffered from numerous deficiencies. Dkt. No. 16. In response to 22 plaintiff’s complaints that he had been denied access to the law library and/or his legal materials, 23 see Dkt. Nos. 17, 21, 24, the Court granted plaintiff multiple extensions of time to file his second 24 amended complaint, see Dkt. Nos. 18, 23, 25. Plaintiff has also previously requested appointment 25 of counsel. See Dkt. Nos. 15, 24. The Court has denied these requests for lack of exceptional 26 circumstances. See Dkt. Nos. 16, 25. 27 DISCUSSION 1 legal materials (which he since appears to have received), and denied access to the law library and 2 the courts. Dkt. No. 26. He also alleges that he has suffered mental and physical health issues; 3 had his life threatened by other inmates; and is locked up 24 hours a day and escorted everywhere 4 he goes. He requests appointment of counsel because of the restrictions on his movement and 5 because he is mentally and physically exhausted from what he has endured these past months. 6 Dkt. No. 26. 7 The Court sua sponte GRANTS plaintiff a fourth extension of time to September 18, 8 2020, to file his second amended complaint. 9 The Court DENIES plaintiff’s third request for appointment of counsel for lack of 10 exceptional circumstances. As explained previously, the decision to request counsel to represent 11 an indigent litigant under § 1915 is within “the sound discretion of the trial court and is granted 12 only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A 13 finding of the “exceptional circumstances” of the plaintiff seeking assistance requires an 14 evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of the 15 plaintiff’s ability to articulate his claims pro se in light of the complexity of the legal issues 16 involved. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). 17 Both of these factors must be viewed together before reaching a decision on a request for counsel 18 under § 1915. See id. The fact that the pro se litigant would be better served with the assistance 19 of counsel does not necessarily qualify the issues involved as complex. See Wilborn v. 20 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (that plaintiff may well have fared better with 21 assistance of counsel not enough). The likelihood of plaintiff’s success on the merits is unclear at 22 this stage; and plaintiff has ably prosecuted this case thus far, filing multiple motions despite 23 limited or no access to the law library and his materials. Plaintiff’s motion requesting 24 appointment of counsel is DENIED for lack of exceptional circumstances. Dkt. No. 26. This 25 denial is without prejudice to the Court’s sua sponte appointment of counsel at a future date 26 should the circumstances of this case warrant such appointment. 27 CONCLUSION 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. 4 IT IS SO ORDERED. 5 Dated: 8/3/2020 6 : HAYWOOD S. GILLIAM, JR. 7 United States District Judge 8 9 10 ll a 12 15 16 € = 17 6 Zz 18 19 20 21 22 23 24 25 26 27 28