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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Juan Vianez,

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No. CV 13-2310-PHX-RCB (BSB)
Plaintiff,

vs.

ORDER

District Court of Phoenix,

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Defendant.

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On November 12, 2013, Plaintiff Juan Vianez, who is confined in the United

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States Penitentiary-Florence in Florence, Colorado, filed a pro se Complaint pursuant to

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42 U.S.C. § 1983. In a November 18, 2013 Order, the Court noted that Plaintiff had not

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paid the $400.00 filing and administrative fees or filed an Application to Proceed In

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Forma Pauperis.

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administrative fees or file an Application to Proceed. The Court also dismissed the

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Complaint because Plaintiff had not filed on a court-approved form, as required by Local

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Rule 3.4. The Court gave Plaintiff 30 days to file an amended complaint on a court-

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approved form.

The Court gave Plaintiff 30 days to either pay the filing and

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On November 25, 2015, Plaintiff filed a Document (Doc. 4) entitled “Venire

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facias[;] Oral hearing (A)(2).” On December 2, 2013, he filed a Document (Doc. 5)

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entitled “Quad Pemitt[;] Delay” and a Document (Doc. 6) entitled “Order.”

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I.

Document 4

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In Document 4, Plaintiff states that he would like a “court date to state his case.”

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He also states that he is “waiting on the pro bono and personal investigator that he

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requested.”

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Currently, Plaintiff’s Complaint has been dismissed with leave to amend and he

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has not paid the filing and administrative fees or filed an Application to Proceed In

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Forma Pauperis. There is, therefore, no reason to hold a hearing so Plaintiff can “state

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his case.”

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To the extent Plaintiff sought a “pro bono [attorney] and personal investigator” in

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his Complaint, there is no constitutional right to the appointment of counsel in a civil

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case. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982).

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In proceedings in forma pauperis, the court may request an attorney to represent any

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person unable to afford one.

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authorized to proceed in forma pauperis because, as of yet, he has not filed an

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Application to Proceed In Forma Pauperis.

28 U.S.C. § 1915(e)(1).

But Plaintiff has not been

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Even if Plaintiff had been authorized to proceed in forma pauperis, appointment of

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counsel under 28 U.S.C. § 1915(e)(1) is required only when “exceptional circumstances”

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are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination

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with respect to exceptional circumstances requires an evaluation of the likelihood of

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success on the merits as well as the ability of Plaintiff to articulate his claims pro se in

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light of the complexity of the legal issue involved. Id. “Neither of these factors is

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dispositive and both must be viewed together before reaching a decision.” Id. (quoting

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Given the fact that

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Plaintiff’s Complaint has been dismissed, exceptional circumstances that would require

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the appointment of counsel are not present in this case.

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Thus, the Court will deny Plaintiff’s requests in his Document 4.
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Document 5
In Document 5, Plaintiff accuses the Court of “wasting time” and appears to be

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alleging that he provided information to the Court that would enable the Court to obtain

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his inmate account information.1

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Plaintiff requests no relief in Document 5 and, therefore, the Court will take no

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action regarding this document. Plaintiff should take note that it is his responsibility to

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either pay the filing and administrative fees or file a complete Application to Proceed In

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Forma Pauperis. It is not the Court’s responsibility to obtain a copy of Plaintiff’s inmate

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trust account statement.

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III.

Document 6

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In Document 6, Plaintiff states that he sent documents to the Court, but the Court

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did not file the documents. Plaintiff “orders the Clerk to file a copy of the documents for

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this case (CV-13-02310-PHX-RCB) and file complaint.”

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First, the Clerk of Court was acting pursuant to a September 9, 2013 Court Order

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in Vianez v. Phoenix (F.C.I.), 13-CV-1081-PHX-RCB (BSB) (D. Ariz.),2 when it refused

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to accept documents in that case. Second, if Plaintiff wanted the “complaint” that is

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attached to Document 6 to be filed in this Court, he should have filed it in this Court,

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rather than submitting it to the Ninth Circuit Court of Appeals.

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Thus, the Court will deny Document 6.

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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.
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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).
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IT IS ORDERED:

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(1)

Plaintiff’s November 25, 2013 Document (Doc. 4) is denied.

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(2)

Plaintiff’s December 2, 2013 Document (Doc. 6) is denied.

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DATED this 12th day of December, 2013.

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