Dutcher #067784 v. Ryan

Filing 187

ORDER denying 175 Motion to Appoint Counsel and 186 Motion to Permit Plaintiff to Respond to Defendant Shield's Disguised Motion to Strike/ Motion for Excellerated [sic] Ruling. Signed by Magistrate Judge Eileen S Willett on 10/3/18. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert William Dutcher,
Plaintiff,

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ORDER

v.

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No. CV-15-01079-PHX-ROS (ESW)

Charles L Ryan, et al.,

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Defendants.

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Pending before the Court are Plaintiff’s Motion for Appointment of Counsel (Doc.

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175) and Plaintiff’s “Motion to Permit Plaintiff to Respond to Defendant Shield’s

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Disguised Motion to Strike/ Motion for Excellerated [sic] Ruling” (Doc. 186).
I. DISCUSSION

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A. Motion for Appointment of Counsel (Doc. 175)

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In his second Motion for Appointment of Counsel Plaintiff seeks the appointment

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of counsel for purposes of trial to (i) depose the Defendants, (ii) prepare pretrial motions,

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(iii) cross examine Defendants’ witnesses, and (iv) review medical specialist’s findings.

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(Doc. 175 at 2).

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As previously explained to the Plaintiff, there is no constitutional right to the

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appointment of counsel in a civil case. See Johnson v. U.S. Dep’t of Treasury, 939 F.2d

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820, 824 (9th Cir. 1991); Ivey v. Bd of Regents of the Univ. of Alaska, 673 F.2d 266, 269

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(9th Cir. 1982). In pro se and in forma pauperis proceedings, district courts do not have

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the authority “to make coercive appointments of counsel.” Mallard v. United States

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District Court, 490 U.S. 296, 310 (1989).

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discretion to request that an attorney represent an indigent civil litigant upon a showing of

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“exceptional circumstances.” 28 U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. Of

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America, 390 F.3d 1101, 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991). A determination with respect to exceptional circumstances requires an

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evaluation of the likelihood of success on the merits as well as the ability of Plaintiff to

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articulate his claims pro se in light of the complexity of the legal issue involved. Id.

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“Neither of these factors is dispositive and both must be viewed together before reaching

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District courts, however, do have the

a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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Plaintiff’s filings with the Court indicate that Plaintiff is capable of navigating this

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proceeding and presenting arguments to the Court. Indeed, several of Plaintiff’s claims

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have survived summary judgment, and the case has been referred to a Magistrate Judge

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for a settlement conference. The Court does not find that exceptional circumstances are

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present that would require the appointment of counsel in this case. Plaintiff remains in a

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position no different than many pro se prisoner litigants. The Court will deny Plaintiff’s

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Motion for Appointment of Counsel (Doc. 175).

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B. “Motion to Permit Plaintiff to Respond to Defendant Shield’s Disguised

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Motion to Strike/ Motion for Excellerated [sic] Ruling” (Doc. 186).

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Plaintiff is requesting the opportunity to file a surreply to Defendant Shield’s

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Motion for Summary Judgment. However, the Court has ruled on the merits, specifically

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noting that the Court accepted and considered Plaintiff’s Response and Statement of

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Facts.

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procedural concerns were addressed by the Court favorably for Plaintiff, Plaintiff’s

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request is moot and will be denied.

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(Doc. 185 at 1-2).

As there is no pending defense motion and Plaintiff’s

II. CONCLUSION

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For the reasons set forth herein,

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IT IS ORDERED denying Plaintiff’s Motion for Appointment of Counsel (Doc.

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175).

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IT IS FURTHER ORDERED denying Plaintiff’s “Motion to Permit Plaintiff to

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Respond to Defendant Shield’s Disguised Motion to Strike/ Motion for Excellerated [sic]

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Ruling” (Doc. 186).

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Dated this 3rd day of October, 2018.

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