Newton v. Phoenix, City of et al

Filing 31

ORDER: The reference to the Magistrate Judge is withdrawn as to Defendant's Motion to Dismiss 8 and Plaintiff's Appeal of Magistrate Judge Decision 21 ; Defendant's Motion to Dismiss 8 is denied without prejudice; and The Magistrate Judge's Decision 19 denying appointment of counsel is affirmed. Signed by Judge Steven P Logan on 7/3/2014. (ALS)

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SVK

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Hearman Newton,

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No. CV 13-1874-PHX-DGC (MEA)
Plaintiff,

vs.

ORDER

City of Phoenix, et al.,

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Defendants.

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Plaintiff Hearman Newton, who is a prisoner in the custody of the Arizona

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Department of Corrections, brought this civil rights case pursuant to 42 U.S.C. § 1983

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against the City of Phoenix and Officer Michael Myers. (Doc. 1.) The remaining

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Defendant, Officer Myers, moves to dismiss, and Plaintiff opposes.1 (Docs. 8, 11.)

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The Court will deny Defendant’s motion to dismiss without prejudice. In addition,

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the Court will affirm the Magistrate Judge’s Order (Doc. 19) denying Plaintiff’s motion

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seeking the appointment of counsel.

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I.

Background

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Plaintiff’s claim arises out of his arrest on February 19, 2013. On screening under

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28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a claim and directed

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The Court provided notice to Plaintiff regarding the requirements of a response.
(Doc. 9.)

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Myers to answer the Fourth Amendment excessive force claim in Count One and

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dismissed the remaining claims and Defendants. (Doc. 5.)

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Defendant moves to dismiss on the ground that, based on Plaintiff’s guilty plea to

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aggravated assault for events occurring on February 19, 2013, Plaintiff’s claim is barred

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by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). (Doc. 8.) Plaintiff filed a response

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claiming that excessive force was used after Plaintiff was subdued. (Doc. 11.) He also

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filed an Amended Complaint and a Motion to Amend his Complaint, which was opposed

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by Defendant.

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Recommendation (R&R) regarding the Motion to Amend the Complaint, recommending

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(Docs. 10, 12, 14.)

Magistrate Judge Aspey issued a Report and

denial of the Motion to Amend. (Doc. 18.)

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On June 13, 2014, the district court rejected the R&R. (Doc. 27.) The Court

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noted that Plaintiff’s proposed amended complaint alleges that he was shot with a Taser

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while lying on the ground in handcuffs, slammed to the ground twice while unconscious,

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and dragged twenty feet by the handcuffs while unconscious, and that Defendant cut him

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with a “taser dart.” (Id. at 4; ref. Doc. 10.) The Court reasoned that it was unlikely that

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the aggravated assault conviction was based on such conduct and observed that, although

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Plaintiff plead guilty to aggravated assault on Defendant, the record does not reveal the

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factual basis for Plaintiff’s guilty plea. (Doc. 27 at 4.) The Court gave Plaintiff until July

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11, 2014 to file an amended complaint. (Id.)

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In view of the procedural history of the case and the failure of Defendant’s motion

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to demonstrate the factual basis for the plea to aggravated assault, the Court will deny

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Defendant’s Motion to Dismiss, without prejudice.

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II.

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Appointment of Counsel
On May 8, 2014, the Magistrate Judge denied Plaintiff’s Motion to Appoint

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Counsel.

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Appointment of Counsel,” which the Magistrate Judge deemed as an appeal to its Order

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denying Plaintiff’s motion seeking appointment of counsel. (Docs. 19, 21, 28.)

(Doc. 19; ref. Doc. 13.)

Plaintiff filed a “Motion to ‘Reconsider’ for

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The Court will affirm the Magistrate Judge’s decision denying Plaintiff’s request

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for appointment of counsel. There is no constitutional right for an indigent to have

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appointed counsel in a civil case. Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980).

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Although 28 U.S.C. ' 1915(e)(1) confers on a court the discretion to “request” counsel to

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represent an indigent civil litigant, this circuit has limited the exercise of that power to

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“exceptional circumstances,” based upon such factors as the likelihood of success on the

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merits and the ability of the plaintiff to articulate his claims in light of their complexity.

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Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). Plaintiff offers nothing to

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show a likelihood of success, nor does he show any particular complexity of issues in this

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case. He merely asserts that he has limited knowledge of the law and limited access to a

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law library and that the case is likely to involve conflicting testimony. (Doc. 21.) The

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circumstances Plaintiff describes do not differ from those of other inmates who represent

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themselves and do not warrant appointment of counsel at this time.

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IT IS ORDERED:

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(1)

The reference to the Magistrate Judge is withdrawn as to Defendant’s

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Motion to Dismiss (Doc. 8) and Plaintiff’s Appeal of Magistrate Judge Decision (Doc.

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21);

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(2)

Defendant’s Motion to Dismiss (Doc. 8) is denied without prejudice; and

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(3)

The Magistrate Judge’s Decision (Doc. 19) denying appointment of counsel

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is affirmed.
Dated this 3rd day of July, 2014.

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Honorable Steven P. Logan
United States District Judge

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