Free Response to Motion - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Nicole T. McGuire, 024864 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7811 [email protected] [email protected] Attorneys for Defendant Robertson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Kim Michael Cook, Plaintiff, v. Dr. Robertson, et al, Defendants. DEFENDANT ROBERTSON'S RESPONSE TO PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL NO. CIV 03-1100 PHX-ROS (VAM)

Defendant Dr. Robertson, through counsel, objects to Plaintiff's Motion for the Appointment of Counsel. This Court previously denied the Plaintiff's request for the appointment of counsel in its Order dated October 15, 2004 (Doc. #7). Since the Court's ruling, Plaintiff has not demonstrated a likelihood of success on the merits or an inability to articulate his claims pro se. Accordingly, Defendant Robertson requests that this Court deny the Plaintiff's Motion for the Appointment of Counsel, dated February 5, 2007. This Response is supported by the attached Memorandum of Points and Authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES BACKGROUND On June 9, 2004, the Plaintiff filed a Motion for Appointment of Counsel [Doc. #3]. On October 15, 2004, this Court entered an Order denying Plaintiff's motion because it did not find exceptional circumstances that would require the appointment of counsel. [Doc. #7 at p. 8]. II. ARGUMENT The appointment of counsel in a civil rights case is required only under exceptional circumstances.1 In determining whether exceptional circumstances are present, the court must evaluate the likelihood of success on the merits and the Plaintiff's ability to articulate his claims pro se in view of the complexity of the legal issues involved. Id. Although neither factor is dispositive, both factors must be considered

together before the Court reaches a decision. Id. Here, Plaintiff has not demonstrated a likelihood of success on the merits. Instead, the Plaintiff requests the appointment of counsel "to make it easier for the Court and Defendants to address the merits of the claims when presented by trained counsel." [Plaintiff's Motion for the Appointment of Counsel, Doc. #104] Furthermore, Plaintiff's filing of numerous motions with the Court, as well as Plaintiff's responses to Defendants' motions, including Defendant Robertson's pending motion for summary judgment, demonstrate that Plaintiff's writing ability and legal knowledge are sufficient to articulate his claims pro se. Therefore, Plaintiff has failed to demonstrate exceptional

circumstances requiring the appointment of counsel.

Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)(citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
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III.

CONCLUSION Defendant Robertson respectfully requests this Court to deny Plaintiff's

Motion for the Appointment of Counsel because: (1) Plaintiff failed to demonstrate exceptional circumstances; (2) Plaintiff failed to demonstrate a likelihood of success on the merits; (3) Plaintiff failed to demonstrate an inability to articulate his claims pro se in light of the complexity of his legal issues; and (4) this Court previously denied Plaintiff's Motion for Appointment of Counsel. RESPECTFULLY SUBMITTED this 20th day of February 2007. JONES, SKELTON & HOCHULI, P.L.C.

BY s/ Nicole T. McGuire Daniel P. Struck Nicole T. McGuire 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant Robertson ELECTRONICALLY filed this 20th day of February 2007 COPY of the foregoing mailed this date to:

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Kim Michael Cook, #112893 LEGAL MAIL Red Rock Correctional Facility 1750 E. Arica Road Eloy, Arizona 85231 Plaintiff pro se COPY delivered electronically this date to: Renee M. Coury Attorneys for Defendant Benjamin

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