Newton v. Phoenix, City of et al
Filing
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ORDER: The reference to the Magistrate Judge is withdrawn as to Defendant's Motion to Dismiss 8 and Plaintiff's Appeal of Magistrate Judge Decision 21 ; Defendant's Motion to Dismiss 8 is denied without prejudice; and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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