Brogdon v. Phoenix Police Department et al

Filing 62

ORDER denying 60 Plaintiff's Motion for Appointment of Counsel. Signed by Senior Judge Robert C Broomfield on 6/19/2013.(TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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George Albert Brogdon, Jr.

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Plaintiff,
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vs.
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City of Phoenix Police
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Department; Officer Mylen
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Lubker; Officer Eric
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Boardman,
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Defendants.
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____________________________)

No. CV-11-01389-PHX-RCB(MEA)
O R D E R

Pending before the court is plaintiff pro se George

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Albert Brogdon, Jr.’s

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Counsel pursuant to 28 U.S.C. § 1915(e)(1) (Doc. 60).

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Despite three attempts, still, plaintiff has not made the

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predicate showing of “exceptional circumstances” which the

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Ninth Circuit requires to warrant appointment of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). See Agyeman v. Corr.

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Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting

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Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984))

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(District courts have discretion pursuant to section

third Motion for Appointment of

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

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“‘only in exceptional circumstances.’”).

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discussed below, the court denies plaintiff's motion for

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appointment of counsel.

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Accordingly,

as

Background

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Plaintiff’s current motion, although not identical, is

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substantially similar to his prior two motions, which were

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denied.

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“unable to afford counsel[;]” (2) he has been “granted leave

As before, the plaintiff declares that: (1) he is

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to proceed in forma pauperis[;]” and (3) his “imprisonment

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will greatly limit his ability to litigate.”

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(Doc. 60) at 1, ¶¶ 1-2 with Mot. (Doc. 37) at 1, ¶¶ 1-2 and

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Mot. (Doc. 23) at 1, ¶¶ 1-2.

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states that “counsel would better enable [him] to present

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evidence and cross-examine witnesses[]” at trial.

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id. at 1, ¶ 3 with Mot. (Doc. 37) at 1, ¶ 3 and Mot. (Doc.

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23) at 2, ¶ 3.

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this time, rather than simply anticipating trial, as the

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plaintiff indicates, the case is trial ready.

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parties have been ordered, among other things, to lodge a

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Proposed Joint Pretrial Order shortly. See Ord. (Doc. 59).

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Compare Mot.

Also as before, plaintiff

Compare

In contrast to his earlier motions, however,

Indeed, the

Continuing to oppose plaintiff’s motion, the defendants

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argue, as they did previously, that he has not shown the

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requisite “exceptional circumstances” for appointment of

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counsel pursuant to 28 U.S.C. § 1915(e)(1).

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agrees.

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The court

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

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constitutional right to appointed counsel[.]”

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

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omitted), partially overruled en banc on other grounds, 154

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F.3d 952, 954 n. 1 (9th

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Resolution Trust Corp., 32 F.3d 1360, 1353 (9th Cir. 1994)

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(“[T]here is no absolute right to counsel in civil

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proceedings.”)

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authority “to make coercive appointments of counsel.”

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Mallard v. United States District Court, 490 U.S. 296, 310,

Rand v.

Cir. 1998)); see also Hedges v.

Therefore, federal courts do not have the

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109 S.Ct. 1814, 104 L.Ed.2d 318 (1989). By the same token

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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.” Such a request is predicated upon a showing of

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exceptional circumstances. See Agyeman, 390 F.3d at 1103.

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A finding of exceptional circumstances “requires at least

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an evaluation of the likelihood of the plaintiff’s success on

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the merits and an evaluation of the plaintiff’s ability to

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articulate his claims ‘in light of the complexity of the

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legal issues involved.’” Id. (quoting Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986)). “‘Neither of these

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factors is dispositive and both must be viewed together

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before reaching a decision.’” Terrell v. Brewer, 935 F.2d

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

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1331). In the end, the burden remains upon the plaintiff to

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establish exceptional circumstances. See Thornton v.

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

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(denying section 1915(e)(1) motion for appointment of counsel

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where plaintiff “failed to demonstrate either a likelihood of

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success on the merits or an inability to represent himself

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(beyond the ordinary burdens encountered by prisoners

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representing themselves pro se) [ ]”).

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not met this burden.

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Plaintiff Brogdon has

Plaintiff does not offer (nor has he previously) any

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argument whatsoever as to his likelihood of success on the

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merits.

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because of the complexity of the claims he [has been] unable

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to articulate his positions.”

Likewise, plaintiff Brogdon has not shown “that

See Rand, 113 F.3d at 1525.

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Indeed, the record demonstrates just the opposite.

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for trial is a straightforward “Fourth Amendment claim . . .

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alleging that [defendants] Boardman and Lubker lacked

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reasonable suspicion to stop and detain Plaintiff.”

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(Doc. 57) at 13:1-2, ¶ 4.

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legally complex.

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parties or issues.

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Remaining

Ord.

This case is not factually or

Nor does it involve a large number of

What is more, as the record reflects, the plaintiff has

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shown an ability to more than adequately articulate his

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position.

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. . . , as the Court found that [his] complaint contained

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allegations sufficient to survive the [statutorily mandated]

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sua sponte screening” process.

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

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the two year pendency of this lawsuit, plaintiff has filed

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numerous motions with some success.

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withstood defendants’ motion to dismiss, as well as their

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summary judgment motion.

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is capable of navigating the legal process.

Plaintiff “has been able to articulate his claims

See Miller v. LaMontagne,

Indeed, he partially

Thus, plaintiff has shown that he

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Even if, as plaintiff claims, his confinement “will

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greatly limit his ability to litigate[,]” Mot. (Doc. 60) at

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1, that asserted limitation does not establish complexity of

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the issues or otherwise show exceptional circumstances.

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Finally, although, as plaintiff states, an attorney “would

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better enable plaintiff to present evidence and cross-examine

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witnesses[,]” id., that is not a sufficient basis for finding

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exceptional circumstances.

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*5 (citing Rand, 113 F.3d at 1525) (“factual disputes and

See Thornton, 2010 WL 3910446, at

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anticipated cross-examination of witnesses do not indicate a

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presence of complex legal issues warranting a finding of

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exceptional circumstances”).

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For all of these reasons, on this record the court finds

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that the “exceptional circumstances” necessary for

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appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) are

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absent.

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Motion for Appointment of Counsel (Doc. 60).

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DATED this 19th day of June, 2011.

Accordingly, the court hereby DENIES plaintiff’s

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Copies to counsel of record and plaintiff pro se

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