2012-00136027-CU-PO

Mr. Norman Dixon vs. Mr. Ron Barnes Warden

Nature of Proceeding: Motion for Appointment of Counsel

Filed By: Dixon, Norman

Plaintiff’s Motion for Appointment of Counsel in this civil action prosecuted by plaintiff is
denied.

The United States and California Supreme Courts have recognized a constitutional
right of access to the courts for all persons, including prisoners. (Procunier v. Martinez
(1974) 416 U.S. 396, 419 ; Payne v. Superior Court (1976) 17 Cal.3d 908, 922-923.)
Although prisoners must forfeit significant rights and privileges as a necessary
corollary of prison life, they “‘retain those basic rights which are not incompatible with
the running of the penal institution.’ [Citations.]” (Payne, supra, at p. 913.) In California,
the Legislature has codified these principles. Penal Code section 2600 provides that a
prisoner may “be deprived of such rights, and only such rights, as is reasonably related
to legitimate penological interests.” Thus, a California inmate has a statutory right to
initiate civil actions. (Pen. Code, § 2601, subd. (d).) The corollary question is whether
and under what circumstances a prisoner may importune the Court for appointment of
civil counsel. There is no general constitutional right to appointment of counsel in a
civil action. See 1 Cal.Proc (4th) Attorneys, section 74. The United States Supreme
Court has recognized an indigent’s right to appointed counsel only where the indigent
may lose physical liberty if he or she loses the litigation: “it is against this presumption
that all the other elements in the due process decision must be measured. Lassiter v
Department of Social Services of Durham County, North Carolina (1981) 452 U.S. 18.

The constitutional right of access to the courts (see, also, Bounds v. Smith, 430 U.S.
817, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977) (Bounds); Wolff v. McDonnell, 418 U.S.
539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Johnson v. Avery, 393 U.S. 483, 21 L.
Ed. 2d 718, 89 S. Ct. 747 (1969)), should be distinguished from the relief sought by
plaintiff in this civil motion for appointment of counsel brought by him. At least one
Federal Circuit Court (the Sixth Circuit) stated that it would be “an unwarranted
extension of the right of access” to require states to affirmatively assist prisoners on
civil matters arising under state law. John L. v. Adams (1992) 969 F.2d 228, 235-36.
In Knop v. Johnson (1992) 977 F. 2d 996, the Sixth Circuit reasoned that it might be
“a good idea” for the taxpayers to provide legal assistance for prisoners in all civil
matters as to which a need can be demonstrated, just as it might be a good idea for
the taxpayers to provide such assistance for the populace at large. But the Court noted
that it necessarily returned to the obvious truth that not every good idea is mandated
by the Constitution. Knop, 977 F.2d at 1009. The Knop court thus went on to conclude
that if a law-abiding citizen does not have a constitutional right of access to the public
purse for legal assistance to pursue or defend all types of legal claims, certainly it
should not be the case that such a constitutional right arises as a result of
incarceration. Id.; accord Nordgren v. Milliken, 762 F.2d 851, 855 (10th Cir.)
(addressing the extent to which the assistance should be carried out, “we should not
hold that the right of access to the courts requires more than the assistance of counsel
through completion of the complaint for a federal habeas or civil rights action”), cert.
denied, 474 U.S. 1032, 88 L. Ed. 2d 573, 106 S. Ct. 593 (1985)); see, also Schrier v.
Halford (1995) 60 F. 3d 1309 (8th Cir.).

Nonetheless, the Court perceives the issue as involving the discretion of the Court
rather than a blanket prohibition. In other cases, it is noted the Court has discretion
over appointment of counsel for indigent litigants in civil claims. In re Martin-Trigona,
737 F.2d 1254, 1260 (2d Cir. 1984). “There is no requirement that an indigent litigant
be appointed pro bono counsel in civil matters, unlike most criminal cases.” Burgos v.
Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). The factors to be considered in deciding
whether or not to assign counsel were set forth by the Second Circuit in Hodge v.
Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986):
[T]he district judge should first determine whether the indigent’s position
seems likely to be of substance. If the claim meets this threshold requirement, the
court should then consider the indigent’s ability to investigate crucial facts, whether
conflicting evidence implicating the need for cross-examination will be the major
proof presented to the fact finder, the indigent’s ability to present the case, the
complexity of the legal issues and any special reason in that case why
appointment of counsel would be more likely to lead to a just determination.

To make a showing of denied access to the courts, an inmate must demonstrate
actual injury or contemplated litigation of a non-frivolous claim which challenges that
inmate’s sentence or his conditions of confinement. See Lewis v. Casey, 518 U.S. 343,
354-55, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). Also, as noted in Lavado v.
Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993), “Appointment of counsel in a civil case
is not a constitutional right. It is a privilege that is justified only by exceptional
circumstances. In determining whether exceptional circumstances exist, courts have
examined the type of case and the abilities of the plaintiff to represent himself. This
generally involves a determination of the complexity of the factual and legal issues.”
No requisite showing is made here, and there is no showing why petitioner is not
competent to proceed with his claim, nor any showing that he has been denied access
to the court or that his access is being impeded.

The minute order is effective immediately. The clerk is directed to send a copy of the
minute order to the plaintiff.