United States District Court, N.D. California
ORDER DENYING MOTION TO RECONSIDER APPOINTMENT OF
COUNSEL; GRANTING REQUEST FOR EXTENSION OF TIME TO FILE
DISPOSITIVE MOTION (DOCKET NOS. 34, 36)
BETH
LABSON FREEMAN United States District Judge
Plaintiff,
a state prisoner proceeding pro se filed a civil
rights complaint pursuant to 42 U.S.C. § 1983. On
November 5, 2018, the Court dismissed the complaint with
leave to amend. (Docket No. 11.) In the same order, the Court
denied Plaintiff's motion for appointment of counsel.
(Id.; Docket No. 4.) On July 11, 2019, the Court
screened the amended complaint and found it stated cognizable
claims under the Eighth Amendment for deliberate indifference
to serious medical needs against Defendants Lomu and
Copeland, officers at the Maguire Correctional Facility in
San Mateo County. (Docket No. 22.) The Court ordered the
matter served on Defendants, who were directed to file a
dispositive motion or notice regarding such motion within
ninety-one days from the date the order was filed.
(Id. at 4.) Plaintiff has filed a motion to
reconsider appointment of counsel based on new grounds.
(Docket No. 34.) Defendants' counsel filed a letter,
requesting the Court to modify the deadline for filing a
dispositive motion set in the court's Order of Service
due to delays in discovery. (Docket No. 36.)
Plaintiff
has filed two motions for appointment of counsel, (Docket
Nos. 4, 16), which the Court denied for lack of extraordinary
circumstances. (Docket Nos. 11, 22.) In his motion to
reconsider appointment of counsel, Plaintiff asserts that new
problems have come up in his case that are beyond his
capabilities to handle and are restricting his abilities to
litigate this matter. (Docket No. 34 at 2.) Specifically,
Plaintiff asserts that he is not able to utilize prison
facility law library services because of threats, harassment,
and discrimination by prison law librarian and her inmate
clerks who are preventing him access to the courts.
(Id.) Plaintiff then makes allegations involving
retaliation, false disciplinary charges, and the denial of
medical. (Id. at 3-7.) Plaintiff claims that he
needs legal assistance in order to “file such
claims” and to pursue “court actions for
constitutional violations arising from prison
conditions.” (Id. at 7.)
Plaintiff
has twice been advised that 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). This is
certainly not the situation which Plaintiff faces since this
action involves inadequate medical care and not the loss of
his physical liberty. Furthermore, 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). Plaintiff's motion includes new allegations
against individuals who are not a party to this action and
are therefore beyond the scope of this action. Nor does
Plaintiff explain how the difficult circumstances he faces
have specifically made it difficult to pursue this particular
action. Rather, the challenges he faces, including frequent
lockdowns and limited law library access, are no different
from those faced by other pro se prisoner litigants.
Accordingly, Plaintiffs motion for reconsideration of
appointment of counsel is DENIED for lack of
exceptional circumstances. 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). 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.
The
Court construes Defendants' counsel's letter as a
motion for an extension of time and GRANTS it for good cause
appearing. Defendants' dispositive motion shall be filed
no later than January 2, 2020, which is an
extension of eighty-four days from the original deadline of
October 10, 2019. Briefing shall proceed thereafter in
accordance with the schedule set forth in the Court's
Order of Service. (Docket No. 22.)
This
order terminates Docket Nos. 34 and 36.
IT
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