The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER SERVING SECOND AMENDED COMPLAINT AND ADDRESSING PENDING MOTIONS (Docket nos. 39, 41, 43, 44)
On February 22, 2005, the Court issued an Order addressing discovery matters relevant to Plaintiff's claims against Pelican Bay State Prison (PBSP) Defendants Correctional Sgt. Bosley, Correctional Officer Wolf and Correctional Officer Waycott for excessive force against Plaintiff caused by Defendants' use of pepper spray on another inmate which resulted in injury to Plaintiff, and deliberate indifference to Plaintiff's serious medical needs caused by Defendants' failure to allow Plaintiff to leave his cell and/or be decontaminated after coming into contact with the pepper spray. The Court also granted Plaintiff leave to amend to file a second amended complaint against four newly named Defendants.
On March 7, 2005, Plaintiff filed a request to amend his complaint and submitted a proposed second amended complaint. The second amended complaint meets the requirements set out in the Court's earlier Order. Accordingly, leave to file the second amended complaint is GRANTED.*fn1 (Docket no. 41.) The Clerk of the Court shall serve the Defendants with the second amended complaint, as set forth below.
On March 18, 2005, in response to the Court's prior Order, Defendants submitted under seal for the Court's in camera review the following items: (1) incident report documents regarding the cell extraction of inmate Silverman, and (2) a videotape of the cell extraction of inmate Silverman. Defendants also submitted a proposed protective order to govern Plaintiff's access to these items. The Court has reviewed the items in camera and has entered separately the protective order proposed by Defendants.
In its prior Order the Court granted Plaintiff leave to depose by written deposition inmate Silverman. Plaintiff now moves the Court for a subpoena to compel Defendants' counsel (the State Attorney General's Office) to locate inmate Silverman, who was released recently on parole, and to cause him to appear and answer the written deposition questions submitted by Plaintiff. Plaintiff states that he is unable to do so because of his incarcerated status. Defendants' counsel has objected to Plaintiff's request. It is not the responsibility of Defendants' counsel to provide Plaintiff with access to non-party witnesses, especially those hostile to the defense. Nevertheless, the Court is aware of the limitations placed on Plaintiff's ability to obtain information regarding inmate Silverman's whereabouts by the California Department of Corrections because of Plaintiff's incarcerated status and inmate Silverman's status as a parolee. However, it is not clear that Plaintiff would be unable to file an opposition to any dispositive motion Defendants might file without deposing inmate Silverman. Specifically, in accord with the Court's entry of Defendants' proposed protective order, Plaintiff will have access to the incident reports regarding inmate Silverman's removal from his cell and the videotape of the cell removal, and Plaintiff also has been provided with other discovery relevant to his claims. Accordingly, Plaintiff's request that the Court issue a subpoena for the California Department of Corrections to produce inmate Silverman for written deposition is DENIED without prejudice. (Docket no. 43.) If, after dispositive motions have been filed or Defendants have informed the Court that they intend to proceed to trial, Plaintiff remains of the good faith opinion that inmate Silverman's deposition testimony is necessary to the prosecution of his action, he may renew his request.
Plaintiff seeks a subpoena to command PBSP Correctional Officer J. Morrison, a non-party, to answer written deposition questions. The Clerk of Court shall provide Plaintiff with a third-party subpoena for this purpose.
Plaintiff moves for the appointment of counsel to represent him in this action. He has provided the Court with a plethora of documentation which shows that he has attempted diligently to find private counsel to represent him pro bono, but has been unsuccessful. There is no constitutional right to counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. See Lassiter v. Dep't of Social Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). However, a court "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). The decision whether 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 "exceptional circumstances" 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); Rand, 113 F.3d at 1525; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of these factors must be viewed together before reaching a decision on a request for counsel under § 1915. See id. Neither the need for discovery, nor the fact that the pro se litigant would be better served with the assistance of counsel, necessarily qualify the issues involved as complex. See Rand, 113 F.3d at 1525; see Wilborn, 789 F.2d at 1331 (that plaintiff may well have fared better with assistance of counsel not enough).
At this point in the proceedings it is premature for the Court to determine whether the "exceptional circumstances" which would merit an attempt to find pro bono counsel to represent Plaintiff exist. Accordingly, Plaintiff's request for the appointment of counsel is DENIED without prejudice. (Docket no. 44.) Plaintiff may renew his request after dispositive motions have been filed or if Defendants inform the Court that they do not intend to file dispositive motions and will proceed to trial.
Accordingly, for the reasons set forth above and good cause appearing, the Court hereby orders:
1. Plaintiff's request for a subpoena to compel inmate Silverman's attendance to answer written deposition questions is DENIED without prejudice. (Docket no. 43.)
2. Plaintiff's request for the appointment of counsel is DENIED without prejudice. (Docket no. 44.)
3. Plaintiff's request that the Court issue a third-party subpoena to command PBSP Correctional Officer J. Morrison, a non-party, to answer written deposition questions is GRANTED. The Clerk of the Court shall provide Plaintiff with a third-party subpoena for this purpose.
4. Plaintiff's first request to file a second amended complaint is DENIED as moot. (Docket no. 39.) Plaintiff's second request to file a second amended complaint is GRANTED. (Docket no. 41.)
5. The Clerk of the Court shall mail to Pelican Bay State Prison Defendants CORRECTIONAL OFFICER HOWARD B. SMITH, LIEUTENANT M.A. SMELOSKY, ASSOCIATE WARDEN L. POLK, and MEDICAL TECHNICAL ASSISTANT S. KREGER: a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the Waiver of Service of Summons, a copy of the SECOND AMENDED COMPLAINT (docket no. 40), and a copy of this Order. The Clerk of the Court shall also mail a copy of the SECOND AMENDED ...