Castillo-Arroyo v. Niziolek et al

Filing 11

ORDER denying 7 Plaintiff's Motion to Appoint Counsel. This case must remain closed. Signed by Judge Robert C Broomfield on 2/7/12.(TLJ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Jose Manuel Castillo-Arroyo, Plaintiff, 11 12 vs. 13 Alec Niziolek, et al., 14 Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 11-2404-PHX-RCB (MEA) ORDER 15 16 On December 6, 2011, Plaintiff Jose Manuel Castillo-Arroyo, who is confined in the 17 Corrections Corporation of America’s Eloy Detention Center in Eloy, Arizona, filed a pro 18 se civil rights Complaint pursuant to Bivens v. Six Unknown Named Agents of Federal 19 Bureau of Narcotics, 403 U.S. 388 (1971), and an Application to Proceed In Forma 20 Pauperis. In a December 12, 2011 Order, the Court granted the Application to Proceed and 21 dismissed the Complaint without leave to amend because the defects in Plaintiff’s Complaint 22 could not be corrected. On December 12, 2011, the Clerk of Court entered Judgment. 23 On January 18, 2012, Plaintiff filed a Notice of Appeal. He also filed a Motion for 24 Appointment of Counsel (Doc. 7). It is unclear whether Plaintiff is seeking counsel in this 25 closed case or on appeal. 26 To the extent Plaintiff is seeking the appointment of counsel in this case, the Court 27 will deny his request. There is no constitutional right to the appointment of counsel in a civil 28 case. See Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 269 (9th Cir. 1 1982). In proceedings in forma pauperis, the court may request an attorney to represent any 2 person unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 3 U.S.C. § 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell 4 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 5 A determination with respect to exceptional circumstances requires an evaluation of 6 the likelihood of success on the merits as well as the ability of Plaintiff to articulate his 7 claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these 8 factors is dispositive and both must be viewed together before reaching a decision.” Id. 9 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Given the fact that 10 11 12 the Court has already dismissed this case, the appointment of counsel is not appropriate. To the extent Plaintiff is seeking the appointment of counsel on appeal, Plaintiff should file that request with the Ninth Circuit Court of Appeals, not this Court. 13 Accordingly, 14 IT IS ORDERED: 15 (1) Plaintiff’s Motion for Appointment of Counsel (Doc. 7) is denied. 16 (2) This case must remain closed. 17 DATED this 7th day of February, 2012. 18 19 20 21 22 23 24 25 26 27 28 -2-

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