PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRIAN SCOTT FENLON,

Plaintiff,

v.

COLETTE PETERS, GUY HALL, and

ANDY ALVARADO,

Defendants.

Case No. 6:15-cv-397-SI

OPINION AND ORDER

Michael H. Simon, District Judge.

Before this court is plaintiff’s motion for appointment of counsel. Dkt. 39. For the 

reasons set forth below, plaintiff’s motion is DENIED.

Generally, there is no constitutional right to counsel in a civil case. United States v. 30.64 

Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). The Court has discretion, however, under 28 

U.S.C. § 1915(e) to appoint volunteer counsel for indigent civil litigants in exceptional 

circumstances. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Agyeman v. Corr. Corp. of 

Am., 390 F.3d 1101, 1103 (9th Cir. 2004). While this court may appoint volunteer counsel in 

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PAGE 2 – OPINION AND ORDER

exceptional cases, it has no power to make a mandatory appointment. Mallard v. U.S. Dist. Court 

for S. Dist. of Iowa, 490 U.S. 296, 301-08 (1989).

In determining whether exceptional circumstances exist, a court evaluates the plaintiff’s 

likelihood of success on the merits and the ability of the plaintiff to articulate his or her claim pro 

se in light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970; Agyeman, 390 

F.3d at 1103. However, “[n]either of these factors is dispositive and both must be viewed 

together before reaching a decision on request of counsel under [former] section 1915(d).” 

Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Terrell v. Brewer, 935 F.2d 1015, 

1017 (9th Cir. 1991).

Plaintiff seeks appointment of counsel to assist him in responding to Defendant’s 

discovery requests. On December 23, 2015, the Court granted in part and denied in part

Defendant Andy Alvarado’s1 motion to dismiss, allowing Plaintiff’s claim under 42 U.S.C. 

§ 1983 to move forward. Accordingly, engaging in discovery is appropriate. Discovery is a 

routine part of civil litigation and if the fact that discovery was requested constituted exceptional 

circumstances to appoint counsel, then counsel would need to be appointed in nearly all civil 

cases. Additionally, given the allegations in this case and what would constitute relevant 

evidence, there appears to be minimal risk of an inadvertent production of privileged material. 

The Court also notes that if Plaintiff believes in good faith that a document is responsive to 

Defendant’s discovery requests but is privileged or otherwise not discoverable, Plaintiff may 

withhold that document and provide a privilege log to Defendant. If Defendant believes the 

document is discoverable, Defendant can file a motion with the Court and the Court will review 

the information and decide its discoverability. Considering the facts of this case, the Court does 

 

1 Defendants Colette Peters and Guy Hall have been dismissed from this action. Thus, the 

only remaining Defendant is Andy Alvarado.

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PAGE 3 – OPINION AND ORDER

not find exceptional circumstances exist to appoint counsel for the limited purpose of assisting 

Plaintiff in responding to Defendant’s discovery requests.

Plaintiff also appears to seek an all-purposes appointment of counsel and notes that a 

medical expert witness may be needed. In considering an all-purposes appointment, the Court 

finds that Plaintiff has demonstrated sufficient ability to articulate his claims. The facts and legal 

issues involved are not of substantial complexity. Further, at this stage of the proceeding, 

plaintiff has yet to demonstrate a likelihood of success on the merits by showing that “the alleged 

wrongdoing was objectively ‘harmful enough’ to establish a constitutional violation.” Hudson v. 

McMillian, 503 U.S. 1, 8 (1992); see also Boddie v. Schnieder, 105 F.3d 857, 861-862 (2d 

Cir. 1997). Accordingly, there are no exceptional circumstances that require the appointment of 

counsel under § 1915(e).

CONCLUSION

Based on the foregoing, plaintiff’s motion for appointment of counsel (Dkt. 39) is 

DENIED.

IT IS SO ORDERED.

DATED this 7th day of January, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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