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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Allan Kenneth Morgal,

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Plaintiff,

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vs.
Maricopa County Board of
Supervisors,

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Defendant.
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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

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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
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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

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to section 1915(e)(1) to appoint counsel for indigent civil

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litigants “‘only in exceptional circumstances.’”)

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for the reasons set forth below, the court denies plaintiff’s

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motion for appointment of counsel.

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Therefore,

Background

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Plaintiff first sought appointment of counsel on January

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14, 2008.

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Magistrate Judge”) denied that motion because plaintiff did not

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show

United States Magistrate Judge Edward C. Voss (“the

exceptional

circumstances.

Ord.

(Doc.

32)

at

3.

On

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September 15, 2011, and after plaintiff partially prevailed on

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his pro se appeal to the Ninth Circuit Court of Appeals, he

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filed a second motion for appointment of counsel.

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plaintiff

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appointment, the Magistrate Judge declined to “reconsider its

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prior

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exceptional circumstances.

expanded

order”

upon

because,

his

again,

reasons

plaintiff

for

did

Although

seeking

not

such

establish

Ord. (Doc. 133) at 2:26.

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On January 20, 2012, plaintiff filed another motion to

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appoint counsel, asking the court to “revisit” his September

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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.

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2011 motion.

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requested appointment of counsel on the sole basis that he “can

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not navigate the complex misleading statement [sic] presented

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by

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“insufficient basis” for “satisfy[ing] the legal standard for

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the appointment of counsel[,]” the Magistrate Judge denied this

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motion as well.

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not “show[n] an inability to articulate his claims in light of

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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.

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Likewise,

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“demonstrat[ing] a likelihood of success on the merits.”

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at 2:3-4.

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“exceptional circumstances[.]” Id. at 2:4-5.

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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

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appoint counsel.

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is

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plaintiff is seeking appointment of counsel because allegedly

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defendant repeatedly has made false and misleading statements,

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and it has not met its discovery obligations.

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plaintiff asserts a need for counsel due to his “inability to

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navigate . . . complex discovery rules[;]” the existence of

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complex legal and medical issues and the necessity of expert

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testimony; his belief that “[t]his case will most likely turn

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on

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investigation beyond that which” plaintiff can conduct as an

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inmate.

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that he has tried to obtain “at least 6 attorneys” to represent

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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.
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motion.

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Additionally, now, for the first time, plaintiff focuses on

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the possibility of a trial.

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appoint counsel because it would “shorten the trial and limit

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evidence to relevant issues benefitting” the parties and the

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court.

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that

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Lastly, plaintiff baldly asserts for the first time that he “is

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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

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will

be

an

important

issue.”

Id.

Id.

Discussion

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In a 42 U.S.C. § 1983 action such as this, “[t]here is no

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constitutional right to appointed counsel[.]” Rand v. Rowland,

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113 F.3d 1520, 1525 (9 th Cir. 1997) (citation omitted), partially

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overruled en banc on other grounds, 154 F.3d 952, 954 n. 1 (9 th

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Cir. 1998)); see also Hedges v. Resolution Trust Corp., 32 F.3d

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1360, 1353 (9 th Cir. 1994) (“[T]here is no absolute right to

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counsel in civil proceedings.”)

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not

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counsel.”

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296, 310, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989).

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token though, pursuant to 28 U.S.C. § 1915(e)(1), a “court may

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request an attorney to represent any person unable to afford

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counsel.”

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exceptional circumstances.

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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

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plaintiff seeking assistance requires at least an evaluation of

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the likelihood of the plaintiff's success on the merits and an

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evaluation of the plaintiff's ability to articulate his claims

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‘in light of the complexity of the legal issues involved.’” Id.
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(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9 th Cir.

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1986)). “‘Neither of these factors is dispositive and both must

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be viewed together before reaching a decision.’” Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9 th Cir. 1991) (quoting Wilborn, 789

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F.2d at 1331).

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to

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Schwarzenegger, 2010 WL 3910446, at *5 (S.D.Cal. 2010) (denying

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motion

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1915(e)(1) because plaintiff “failed to demonstrate either a

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likelihood of success on the merits or an inability to represent

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himself (beyond the ordinary burdens encountered by prisoners

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representing themselves pro se)[]”).

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establish

for

In the end, the burden remains upon plaintiff
exceptional

appointment

circumstances.

of

counsel

See

pursuant

Thornton

to

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v.

U.S.C.

§

Before addressing these two factors, because plaintiff

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claims to have contacted “at least 6 attorneys to represent

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him,” the court will, likewise, consider this factor.

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(Doc. 155) at 3.

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motion

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attorneys,

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Regardless,

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unsuccessful,

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diligent

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prerequisite

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indigent plaintiffs an attorney.”

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WL 540542, at *1 (S.D.Cal. 2012) (quoting Bailey v. Lawford, 835

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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

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A.

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Plaintiff offers no argument at all as to his likelihood of

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Likelihood of Success on the Merits

success on the merits.

Moreover, arguably “it is too early to
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determine the likelihood of success on the merits” given that

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“it is not certain whether” plaintiff’s complaint “will survive

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[defendant’s pending motion for] summary judgment.”

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v. Smith, 2012 WL 2499003, at *3 (S.D.Cal. 2012) (citations

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omitted).

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factor does not support plaintiff’s request for appointment of

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counsel.

Therefore,

the

first

“exceptional

See Garcia

circumstances”

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B.

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Plaintiff Morgal fares no better with the second factor in

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that he has not shown “that because of the complexity of the

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claims he [has been] unable to articulate his positions.”

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Rand, 113 F.3d at 1525.

Indeed, the record demonstrates just

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the

a

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defendant remaining.

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articulate his claims against the relative complexity of the

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case,

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allegations sufficient to survive the sua sponte screening”

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which 28 U.S.C. § 1915A requires.

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2012 WL 1666735, at *2 (S.D.Cal. 2012).

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the five year pendency of this lawsuit, plaintiff has filed

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numerous

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representing himself on appeal in the Ninth Circuit.

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despite plaintiff’s protestations to the contrary, he is capable

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of navigating the legal process.

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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

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better–particularly in the realms of discovery and the securing

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of expert testimony– . . . this is not the test.”

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F.3d at 1525.

See Rand, 113

Moreover, despite plaintiff’s claimed inability
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to

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February 24, 2006 “‘Revised Accreditation Report on the Health

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Care Services at Maricopa County Sheriffs [sic] Office-Detention

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Bureau,’” which seemingly he views as critical.

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at 3, n.1.

secure

certain

discovery,

ultimately

he

did

obtain

the

See Doc. 122-1

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Likewise, undoubtedly plaintiff’s confinement has hampered

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his ability to conduct further factual investigation, but that

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does not establish the complexity of the issues or otherwise

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show exceptional circumstances.

See Wilborn, 789 F.2d at 1331

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(noting

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successfully

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demonstration of the need for development of further facts,

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practically all cases would involve complex legal issues.”); see

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also Garcia v. Smith, 2012 WL 2499003, at *4 (S.D.Cal. 2012)

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(“[a]lthough the investigation may be difficult” for a prisoner,

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“it does not rise to the level of an ‘exceptional circumstances’

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that

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“Indeed, most lawsuits require the development of facts over the

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course of the litigation, and pro se plaintiff[s] are typically

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not in the position to easily investigate facts.”

Id. (citation

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omitted);

(“[A]

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litigant will seldom be in a position to investigate easily the

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facts necessary to support the case.”)

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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-

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examination,

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himself at trial, and his belief that credibility issues are at

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the core of this lawsuit, none of these demonstrate exceptional

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circumstances warranting the appointment of counsel at this time

his

claimed

inability

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to

adequately

represent

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given that defendant’s summary judgment motion is pending.

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Montagne, 2012 WL 1666735, at *2; see also Thornton, 2010 WL

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3910446,

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disputes and anticipated cross-examination of witnesses do not

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indicate a presence of complex legal issues warranting a finding

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of

at

*5

(citing

Rand,

113

F.3d

at

1525)

See

(“factual

exceptional circumstances”).

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Turning to plaintiff’s assertion that he is handicapped

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under the ADA, he has not identified or in any away explained

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his purported handicap.

Nor has plaintiff shown, and the court

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fails to see how, such a handicap factors into this court’s

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analysis of whether he is entitled to the appointment of counsel

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under 28 U.S.C. § 1915(e)(1).

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In sum, plaintiff Morgal has not demonstrated the requisite

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exceptional

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section 1915(e)(1) in that he has shown neither a likelihood of

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success on the merits nor an inability “to articulate his claims

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in light of the complexities of the legal issues involved.”

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Agyeman, 390 F.3d at 1103 (internal quotation marks and citation

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omitted).

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better served with the assistance of counsel[,]” Rand, 113 F.3d

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at 1525, the difficulties set forth in plaintiff’s motion are

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“difficulties which any litigant would have proceeding pro se;

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they do not indicate exceptional factors.”

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at 1335-1336. Consequently, the court DENIES plaintiff Morgal’s

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fourth motion for appointment of counsel (Doc. 155).

circumstances

for

appointment

of

counsel

under

See

Although, “any pro se litigant certainly would be

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See Wood, 900 F.2d

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DATED this

23rd

day of July, 2012.

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Copies to counsel of record and plaintiff pro se

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