Vianez v. United States District Court of Arizona

Filing 7

ORDER, Plaintiff's November 25, 2013 Document 4 is denied; Plaintiff's December 2, 2013 Document 6 is denied. Signed by Senior Judge Robert C Broomfield on 12/12/13.(REW)

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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 Juan Vianez, 10 11 12 No. CV 13-2310-PHX-RCB (BSB) Plaintiff, vs. ORDER District Court of Phoenix, 13 14 Defendant. 15 16 On November 12, 2013, Plaintiff Juan Vianez, who is confined in the United 17 States Penitentiary-Florence in Florence, Colorado, filed a pro se Complaint pursuant to 18 42 U.S.C. § 1983. In a November 18, 2013 Order, the Court noted that Plaintiff had not 19 paid the $400.00 filing and administrative fees or filed an Application to Proceed In 20 Forma Pauperis. 21 administrative fees or file an Application to Proceed. The Court also dismissed the 22 Complaint because Plaintiff had not filed on a court-approved form, as required by Local 23 Rule 3.4. The Court gave Plaintiff 30 days to file an amended complaint on a court- 24 approved form. The Court gave Plaintiff 30 days to either pay the filing and 25 On November 25, 2015, Plaintiff filed a Document (Doc. 4) entitled “Venire 26 facias[;] Oral hearing (A)(2).” On December 2, 2013, he filed a Document (Doc. 5) 27 entitled “Quad Pemitt[;] Delay” and a Document (Doc. 6) entitled “Order.” 28 .... 1 I. Document 4 2 In Document 4, Plaintiff states that he would like a “court date to state his case.” 3 He also states that he is “waiting on the pro bono and personal investigator that he 4 requested.” 5 Currently, Plaintiff’s Complaint has been dismissed with leave to amend and he 6 has not paid the filing and administrative fees or filed an Application to Proceed In 7 Forma Pauperis. There is, therefore, no reason to hold a hearing so Plaintiff can “state 8 his case.” 9 To the extent Plaintiff sought a “pro bono [attorney] and personal investigator” in 10 his Complaint, there is no constitutional right to the appointment of counsel in a civil 11 case. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). 12 In proceedings in forma pauperis, the court may request an attorney to represent any 13 person unable to afford one. 14 authorized to proceed in forma pauperis because, as of yet, he has not filed an 15 Application to Proceed In Forma Pauperis. 28 U.S.C. § 1915(e)(1). But Plaintiff has not been 16 Even if Plaintiff had been authorized to proceed in forma pauperis, appointment of 17 counsel under 28 U.S.C. § 1915(e)(1) is required only when “exceptional circumstances” 18 are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination 19 with respect to exceptional circumstances requires an evaluation of the likelihood of 20 success on the merits as well as the ability of Plaintiff to articulate his claims pro se in 21 light of the complexity of the legal issue involved. Id. “Neither of these factors is 22 dispositive and both must be viewed together before reaching a decision.” Id. (quoting 23 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Given the fact that 24 Plaintiff’s Complaint has been dismissed, exceptional circumstances that would require 25 the appointment of counsel are not present in this case. 26 27 28 Thus, the Court will deny Plaintiff’s requests in his Document 4. II. Document 5 In Document 5, Plaintiff accuses the Court of “wasting time” and appears to be -2- 1 alleging that he provided information to the Court that would enable the Court to obtain 2 his inmate account information.1 3 Plaintiff requests no relief in Document 5 and, therefore, the Court will take no 4 action regarding this document. Plaintiff should take note that it is his responsibility to 5 either pay the filing and administrative fees or file a complete Application to Proceed In 6 Forma Pauperis. It is not the Court’s responsibility to obtain a copy of Plaintiff’s inmate 7 trust account statement. 8 III. Document 6 9 In Document 6, Plaintiff states that he sent documents to the Court, but the Court 10 did not file the documents. Plaintiff “orders the Clerk to file a copy of the documents for 11 this case (CV-13-02310-PHX-RCB) and file complaint.” 12 First, the Clerk of Court was acting pursuant to a September 9, 2013 Court Order 13 in Vianez v. Phoenix (F.C.I.), 13-CV-1081-PHX-RCB (BSB) (D. Ariz.),2 when it refused 14 to accept documents in that case. Second, if Plaintiff wanted the “complaint” that is 15 attached to Document 6 to be filed in this Court, he should have filed it in this Court, 16 rather than submitting it to the Ninth Circuit Court of Appeals. 17 Thus, the Court will deny Document 6. 18 .... 19 .... 20 .... 21 .... 22 .... 23 .... 24 .... 25 1 26 27 In this Complaint, Plaintiff states that the Court can “find a copy of trust account” by filing a Freedom of Information Act request with the United States Department of Justice. 2 28 The Order stated that “[o]ther than a document submitted in furtherance of an appeal, the Clerk of Court shall accept no further documents for filing in this case number.” (Doc. 8 in 13-CV-1081) (emphasis in original). -3- 1 IT IS ORDERED: 2 (1) Plaintiff’s November 25, 2013 Document (Doc. 4) is denied. 3 (2) Plaintiff’s December 2, 2013 Document (Doc. 6) is denied. 4 DATED this 12th day of December, 2013. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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