Morgal v. Arpaio et al

Filing 164

ORDER denying Plaintiff Morgal's 155 Fourth Motion for Appointment of Counsel. Signed by Senior Judge Robert C Broomfield on 7/23/12.(REW)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Allan Kenneth Morgal, 13 Plaintiff, 14 15 vs. Maricopa County Board of Supervisors, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) No. CIV 07-0670-PHX-RCB O R D E R Currently pending before the court is plaintiff pro se, 19 Allan Morgal’s, fourth motion for appointment of counsel (doc. 20 155), to which no opposition has been filed. Despite repeated 21 attempts, still, plaintiff has not made the predicate showing of 22 “exceptional circumstances” which the Ninth Circuit requires to 23 warrant appointment 24 1915(e)(1). of counsel pursuant to 28 U.S.C. § See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 25 1103 (9 th Cir. 2004) (quoting Franklin v. Murphy, 745 F.2d 1221, 26 1236 (9 th Cir. 1984)) 1 (District courts have discretion pursuant 27 28 1 In three of his four motions to appoint counsel, including the pending one, plaintiff maintains that he is entitled to counsel because he “has satisfied at least 6 of the Tabron issues. 6 F.3d at 155-57.” Mot. (Doc. 155) at 3. Tabron v. Grace, 6 F.3d 147 (3rd Cir. 1993), is a decision from the Third Circuit Court of Appeals, and hence is not binding upon this 1 to section 1915(e)(1) to appoint counsel for indigent civil 2 litigants “‘only in exceptional circumstances.’”) 3 for the reasons set forth below, the court denies plaintiff’s 4 motion for appointment of counsel. 5 Therefore, Background 6 Plaintiff first sought appointment of counsel on January 7 14, 2008. 8 Magistrate Judge”) denied that motion because plaintiff did not 9 show United States Magistrate Judge Edward C. Voss (“the exceptional circumstances. Ord. (Doc. 32) at 3. On 10 September 15, 2011, and after plaintiff partially prevailed on 11 his pro se appeal to the Ninth Circuit Court of Appeals, he 12 filed a second motion for appointment of counsel. 13 plaintiff 14 appointment, the Magistrate Judge declined to “reconsider its 15 prior 16 exceptional circumstances. expanded order” upon because, his again, reasons plaintiff for did Although seeking not such establish Ord. (Doc. 133) at 2:26. 17 On January 20, 2012, plaintiff filed another motion to 18 appoint counsel, asking the court to “revisit” his September 19 20 21 22 23 24 25 26 27 28 district court sitting in the Ninth Circuit Court of Appeals. Thus, even assuming for the sake of argument that plaintiff has met the Tabron standard, that is irrelevant because Tabron does not provide the governing legal standard here. Moreover, the Third Circuit’s view that the district court erred in requiring “exceptional circumstances” to justify appointment of counsel to an indigent prisoner is not in keeping with the “exceptional circumstances” requirement recognized by this Circuit and others. See, e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (citations omitted) (The Ninth Circuit “has limited the exercise of that power [under section 1915] to exceptional circumstances.”); Lavado v. Keohane. 992 F.2d 601, 606 (6th Cir. 1993) (appointment of counsel in civil case is justified only upon a showing of exceptional circumstances); Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990) (same); Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986) ( same); Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975) (same); and Ehrlich v. Van Epps, 428 F.2d 363, 364 (7th Cir. 1970) (same). Thus, to the extent plaintiff Morgal is suggesting, based upon Tabron, that he need not show exceptional circumstances, he is mistaken. -2- 1 2011 motion. 2 requested appointment of counsel on the sole basis that he “can 3 not navigate the complex misleading statement [sic] presented 4 by 5 “insufficient basis” for “satisfy[ing] the legal standard for 6 the appointment of counsel[,]” the Magistrate Judge denied this 7 motion as well. 8 not “show[n] an inability to articulate his claims in light of 9 the Counsel Mot. (Doc. 136) at 1. to complexity the Courts.” In that motion, plaintiff Id. Finding that was an The Magistrate Judge noted that plaintiff had of the issues.” Ord. (Doc. 138) at 2:2-3. 10 Likewise, 11 “demonstrat[ing] a likelihood of success on the merits.” 12 at 2:3-4. 13 “exceptional circumstances[.]” Id. at 2:4-5. 14 plaintiff also failed to present anything Id. So, again, plaintiff “failed to show” the requisite On June 18, 2012, plaintiff filed the pending motion to 15 appoint counsel. 16 is 17 plaintiff is seeking appointment of counsel because allegedly 18 defendant repeatedly has made false and misleading statements, 19 and it has not met its discovery obligations. 20 plaintiff asserts a need for counsel due to his “inability to 21 navigate . . . complex discovery rules[;]” the existence of 22 complex legal and medical issues and the necessity of expert 23 testimony; his belief that “[t]his case will most likely turn 24 on 25 investigation beyond that which” plaintiff can conduct as an 26 inmate. 27 that he has tried to obtain “at least 6 attorneys” to represent 28 him, but all have declined. taken verbatim cred[i]bility A substantial portion of the present motion from plaintiff’s issues[;]” and Mot. (Doc. 155) at 3 and 2. second the Namely, Also, as before, “need for factual He also once again claims Id. at 3. -3- motion. 1 Additionally, now, for the first time, plaintiff focuses on 2 the possibility of a trial. 3 appoint counsel because it would “shorten the trial and limit 4 evidence to relevant issues benefitting” the parties and the 5 court. 6 that 7 Lastly, plaintiff baldly asserts for the first time that he “is 8 handicapped under the ADA (American Disabilities Act).” Id. at 5. He asserts that the court should For the first time, plaintiff also asserts “cross-examination 9 will be an important issue.” Id. Id. Discussion 10 In a 42 U.S.C. § 1983 action such as this, “[t]here is no 11 constitutional right to appointed counsel[.]” Rand v. Rowland, 12 113 F.3d 1520, 1525 (9 th Cir. 1997) (citation omitted), partially 13 overruled en banc on other grounds, 154 F.3d 952, 954 n. 1 (9 th 14 Cir. 1998)); see also Hedges v. Resolution Trust Corp., 32 F.3d 15 1360, 1353 (9 th Cir. 1994) (“[T]here is no absolute right to 16 counsel in civil proceedings.”) 17 not 18 counsel.” 19 296, 310, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989). 20 token though, pursuant to 28 U.S.C. § 1915(e)(1), a “court may 21 request an attorney to represent any person unable to afford 22 counsel.” 23 exceptional circumstances. 24 have “A the authority “to Therefore, federal courts do make coercive appointments of Mallard v. United States District Court, 490 U.S. Such finding a of request the is predicated upon a By the same showing of See Agyeman, 390 F.3d at 1103. exceptional circumstances of the 25 plaintiff seeking assistance requires at least an evaluation of 26 the likelihood of the plaintiff's success on the merits and an 27 evaluation of the plaintiff's ability to articulate his claims 28 ‘in light of the complexity of the legal issues involved.’” Id. -4- 1 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9 th Cir. 2 1986)). “‘Neither of these factors is dispositive and both must 3 be viewed together before reaching a decision.’” Terrell v. 4 Brewer, 935 F.2d 1015, 1017 (9 th Cir. 1991) (quoting Wilborn, 789 5 F.2d at 1331). 6 to 7 Schwarzenegger, 2010 WL 3910446, at *5 (S.D.Cal. 2010) (denying 8 motion 9 1915(e)(1) because plaintiff “failed to demonstrate either a 10 likelihood of success on the merits or an inability to represent 11 himself (beyond the ordinary burdens encountered by prisoners 12 representing themselves pro se)[]”). 13 establish for In the end, the burden remains upon plaintiff exceptional appointment circumstances. of counsel See pursuant Thornton to 28 v. U.S.C. § Before addressing these two factors, because plaintiff 14 claims to have contacted “at least 6 attorneys to represent 15 him,” the court will, likewise, consider this factor. 16 (Doc. 155) at 3. 17 motion 18 attorneys, 19 Regardless, 20 unsuccessful, 21 diligent 22 prerequisite 23 indigent plaintiffs an attorney.” 24 WL 540542, at *1 (S.D.Cal. 2012) (quoting Bailey v. Lawford, 835 25 F.Supp. 550, 552 (S.D.Cal. 1993)). shows The correspondence attached to plaintiff’s that not See Mot. his by case “at under least all of Plaintiff’s effort some to has declined [six].” the action secure courts been two id. See only at 6-8. circumstances, demonstrates counsel,’ have by required thereby prior “[a]lthough ‘a reasonably satisfying to a appointing See Cota v. Scribner, 2012 26 A. 27 Plaintiff offers no argument at all as to his likelihood of 28 Likelihood of Success on the Merits success on the merits. Moreover, arguably “it is too early to -5- 1 determine the likelihood of success on the merits” given that 2 “it is not certain whether” plaintiff’s complaint “will survive 3 [defendant’s pending motion for] summary judgment.” 4 v. Smith, 2012 WL 2499003, at *3 (S.D.Cal. 2012) (citations 5 omitted). 6 factor does not support plaintiff’s request for appointment of 7 counsel. Therefore, the first “exceptional See Garcia circumstances” 8 B. 9 Plaintiff Morgal fares no better with the second factor in 10 that he has not shown “that because of the complexity of the 11 claims he [has been] unable to articulate his positions.” 12 Rand, 113 F.3d at 1525. Indeed, the record demonstrates just 13 the a 14 defendant remaining. 15 articulate his claims against the relative complexity of the 16 case, 17 allegations sufficient to survive the sua sponte screening” 18 which 28 U.S.C. § 1915A requires. 19 2012 WL 1666735, at *2 (S.D.Cal. 2012). 20 the five year pendency of this lawsuit, plaintiff has filed 21 numerous 22 representing himself on appeal in the Ninth Circuit. 23 despite plaintiff’s protestations to the contrary, he is capable 24 of navigating the legal process. 25 Ability to Articulate Claims opposite. as the This Court motions Further, and is single count complaint See with one And, so far, plaintiff “has been able to found was, although that in [his] contained See Miller v. LaMontagne, fact, plaintiff complaint Additionally, during partially “may well successful have in Thus, fared 26 better–particularly in the realms of discovery and the securing 27 of expert testimony– . . . this is not the test.” 28 F.3d at 1525. See Rand, 113 Moreover, despite plaintiff’s claimed inability -6- 1 to 2 February 24, 2006 “‘Revised Accreditation Report on the Health 3 Care Services at Maricopa County Sheriffs [sic] Office-Detention 4 Bureau,’” which seemingly he views as critical. 5 at 3, n.1. secure certain discovery, ultimately he did obtain the See Doc. 122-1 6 Likewise, undoubtedly plaintiff’s confinement has hampered 7 his ability to conduct further factual investigation, but that 8 does not establish the complexity of the issues or otherwise 9 show exceptional circumstances. See Wilborn, 789 F.2d at 1331 10 (noting 11 successfully 12 demonstration of the need for development of further facts, 13 practically all cases would involve complex legal issues.”); see 14 also Garcia v. Smith, 2012 WL 2499003, at *4 (S.D.Cal. 2012) 15 (“[a]lthough the investigation may be difficult” for a prisoner, 16 “it does not rise to the level of an ‘exceptional circumstances’ 17 that 18 “Indeed, most lawsuits require the development of facts over the 19 course of the litigation, and pro se plaintiff[s] are typically 20 not in the position to easily investigate facts.” Id. (citation 21 omitted); (“[A] 22 litigant will seldom be in a position to investigate easily the 23 facts necessary to support the case.”) 24 that would “[i]f the that complexity entitle see all also of [plaintiff] Wilborn, 789 was required to the relevant issues to appointed F.2d at 1331 establish was a counsel[]”). pro se As to plaintiff’s newly raised concerns regarding cross- 25 examination, 26 himself at trial, and his belief that credibility issues are at 27 the core of this lawsuit, none of these demonstrate exceptional 28 circumstances warranting the appointment of counsel at this time his claimed inability -7- to adequately represent 1 given that defendant’s summary judgment motion is pending. 2 Montagne, 2012 WL 1666735, at *2; see also Thornton, 2010 WL 3 3910446, 4 disputes and anticipated cross-examination of witnesses do not 5 indicate a presence of complex legal issues warranting a finding 6 of at *5 (citing Rand, 113 F.3d at 1525) See (“factual exceptional circumstances”). 7 Turning to plaintiff’s assertion that he is handicapped 8 under the ADA, he has not identified or in any away explained 9 his purported handicap. Nor has plaintiff shown, and the court 10 fails to see how, such a handicap factors into this court’s 11 analysis of whether he is entitled to the appointment of counsel 12 under 28 U.S.C. § 1915(e)(1). 13 In sum, plaintiff Morgal has not demonstrated the requisite 14 exceptional 15 section 1915(e)(1) in that he has shown neither a likelihood of 16 success on the merits nor an inability “to articulate his claims 17 in light of the complexities of the legal issues involved.” 18 Agyeman, 390 F.3d at 1103 (internal quotation marks and citation 19 omitted). 20 better served with the assistance of counsel[,]” Rand, 113 F.3d 21 at 1525, the difficulties set forth in plaintiff’s motion are 22 “difficulties which any litigant would have proceeding pro se; 23 they do not indicate exceptional factors.” 24 at 1335-1336. Consequently, the court DENIES plaintiff Morgal’s 25 fourth motion for appointment of counsel (Doc. 155). circumstances for appointment of counsel under See Although, “any pro se litigant certainly would be 26 27 28 -8- See Wood, 900 F.2d 1 DATED this 23rd day of July, 2012. 2 3 4 5 6 7 Copies to counsel of record and plaintiff pro se 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-

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