Free Order on Motion to Appoint Counsel - District Court of Arizona - Arizona

SRM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Albert DeLeon, Plaintiff -vsDora B. Schriro, et al., Defendant(s) CV-04-0446-PHX-PGR (JI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

REQUEST FOR APPOINTMENT OF COUNSEL Under consideration is Plaintiff's Motion for Appointment of Counsel, filed September 26, 2006 (#220). Plaintiff seeks appointment of counsel on the basis that: (1) Plaintiff cannot afford counsel; (2) the issues are complex; and (3) Plaintiff's limited knowledge of the law. Plaintiff argues that the complexity of the case stems for his inclusion of a number of different claims with different defendants, and the involvement of medical issues requiring expert testimony. Plaintiff anticipates disputed testimony during the demanded jury trial. Defendants respond (#221) that there are no "exceptional circumstances" because following a grant of partial summary judgment only one count remains to be litigated, i.e. a claim of retaliation by tightening of handcuffs and requiring Plaintiff to crawl up to a third-tier cell. Plaintiff has not replied. Judge Sitver, to whom this case was previously assigned, denied Plaintiff's prior requests for counsel on September 7, 2004 (#35). Plaintiff still fails to establish a basis for appointment of counsel. There is no constitutional right for an indigent to have appointed counsel in a civil case. Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). It is established "beyond doubt" that prisoners have a constitutional right of access to the courts, Bounds v. Smith, 430 U.S. 817, 821 (1977), that is "adequate, effective, and meaningful," id. at 822. That right of access may,
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in some exceptional circumstances, require appointment of counsel. However, the Ninth Circuit has held that the constitutional right of access to the courts requires that the state provide assistance only through the pleading stage, including preparation of a reply to an answer, if the court orders a reply. Cornett v. Donovan, 51 F.3d 894, 899 (1995). The

pleadings in this case are complete. Accordingly, Plaintiff's right of access is not at issue, and therefore cannot justify appointment of counsel. Further, 28 U.S.C. § 1915(e)(1) confers on the court the discretion to "request" counsel to represent an indigent civil litigant, but this circuit has limited the exercise of that power to "exceptional circumstances," based upon such factors as the likelihood of success on the merits and the ability of the plaintiff to articulate his claims in light of their complexity. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). Plaintiff offers nothing to show a likelihood of success. Nor does he show any

peculiar complexity of issues in this case. The factors recited by Plaintiff, e.g. his lack of legal training, disputed testimony at trial, etc. are not "exceptional" but common to pro se prisoner litigants. Moreover, such matters relate to the complexity of litigating his claims, not the complexity of the claims themselves. His remaining claim of retaliation is common place. The elimination of his other claims on summary judgment, renders inapposite Plaintiff's claims that the case is complex because of multiple claims and defendants. Likewise, it no longer appears that expert medical testimony is required.

ORDER TO SHOW CAUSE On September 15, 2006, the Court ordered (#219) the parties to confer and lodge their proposed pretrial order within 30 days. On October 16, 2006, Defendants filed a draft Joint Proposed Pretrial Order, noting that Defendants had, as directed, initiated the preparation of the draft, but Plaintiff had not provided any input or response, and has not provided a phone number to allow personal consultation. Plaintiff will be directed to show cause why his failure to participate should not result in dismissal. //
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IT IS THEREFORE ORDERED that Plaintiff's Motion for Appointment of Counsel, filed September 26, 2006 (#220) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that within ten days of the filing of this Order, Plaintiff shall file a response to this order showing cause why this matter should not be dismissed for failure to prosecute as a result of Plaintiff's failure to participate in the preparation of a jointly proposed pretrial order.

DATED: October 16, 2006
S:\Drafts\OutBox\04-0446-220o Order 06 10 16 re RFC.wpd

_____________________________________ JAY R. IRWIN United States Magistrate Judge

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