Flowers #125290 v. Lawrence et al

Filing 117

ORDER denying 112 Motion to Appoint Counsel. Signed by Senior Judge James A Teilborg on 5/12/16.(KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Eulandas J. Flowers,

No. CV-14-08184-PCT-JAT

Plaintiff,

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v.

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ORDER

Sandra Lawrence, et al,

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Defendants.

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Pending before the Court is Plaintiff Eulandas Flowers’s Motion to Appoint

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Counsel pursuant to Title 28 U.S.C. § 1915(e)(1) (2012), (Doc. 112), his Declaration in

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Support of Motion to Appoint Counsel, (Doc. 113), and his Memorandum of Law in

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Support of Motion to Appoint Counsel. (Doc. 114). The Magistrate Judge has twice

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denied Plaintiff’s motion to appoint counsel, finding that Plaintiff “failed to show that

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exceptional circumstances” were present in his case. (Doc. 18; Doc. 57). The Court now

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rules on the pending motion.

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I.

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The instant matter is a prisoner civil rights case brought pursuant to 42 U.S.C. §

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1983, alleging Eighth Amendment claims against Defendants for use of excessive force,

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failure to intervene, and deliberate indifference. (Doc. 109). On April 25, 2016, the Court

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found that there was a materially disputed issue of fact as to whether Plaintiff had

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exhausted available administrative remedies in accordance with the Prison Litigation

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Reform Act (“PLRA”), Title 42 U.S.C. 1997e(a) (2012), and set for June 16, 2016, the

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exhaustion issue for bench trial. (Doc. 116). On May 5, 2016, Plaintiff filed the pending

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motion for appointment of counsel.

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II.

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There is no constitutional right to the appointment of counsel in a civil case. See

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Johnson v. U.S. Dep’t of Treasury,

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939 F.2d 820, 824 (9th Cir. 1991). But the Court may appoint counsel for an indigent

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civil litigant pursuant to 28 U.S.C. § 1915(e)(1) under “exceptional circumstances.”1

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Palmer, 560 F.3d at 970 (quoting Agyeman, 390 F.3d at 1103). “When determining

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whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of

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

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in light of the complexity of the legal issues involved.’” Id. (quoting Weygandt v. Look,

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718 F.2d 952, 954 (9th Cir. 1983)). These two considerations must be analyzed together;

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neither is dispositive. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

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III.

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Plaintiff’s motion rests on the assertions that his case is complex, his ability to

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investigate is extremely limited due to his segregated incarceration, there is conflicting

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testimony present in the record, he is indigent, and that he has a likelihood of succeeding

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on the merits of his case. (Doc. 114 3-6). The Court notes that Plaintiff’s supporting

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memoranda is substantially similar—indeed identical in many respects—to the

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memoranda filed previously. (See Doc. 52; Doc. 16). Twice before, the Magistrate Judge

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found that Plaintiff failed to demonstrate a likelihood of success on the merits, and had

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not shown that he was “experiencing difficulty in litigating this case because of the

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The Court has no power or authority “to make coercive appointments of
counsel.” Mallard v. United States District Court, 490 U.S. 296, 310 (1989). 28 U.S.C. §
1915(e)(1) gives the Court discretion “to ‘request’ that an attorney represent indigent
civil litigants upon a showing of ‘exceptional circumstances.’” Dunsmore v. Paramo,
2013 U.S. Dist. LEXIS 153656, at *2 (S.D. Cal. Oct. 22, 2013) (citing Agyeman v. Corrs.
Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)).
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complexity of the issues involved.” (Doc. 15 at 2; Doc. 53 at 2). At this stage of the

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proceedings, the Court must more closely scrutinize Plaintiff’s inability to “handle issues

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of conflicting testimony and credibility on his own,” particularly where Plaintiff’s claim

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will be tried by a jury. Eusse v. Vitela, 2015 U.S. Dist. LEXIS 93441, at *6 (S.D. Cal.

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July 16, 2015); Morgai v. Maricopa County Board of Supervisors, No. CIV 07-0670-

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PHX-RCB, 2012 U.S. Dist. LEXIS 102432, at *10 (D. Ariz. July 24, 2012). Nonetheless,

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having reviewed Plaintiff’s motion and supporting memorandum, the Court finds that

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Plaintiff has failed to carry his burden under 28 U.S.C. § 1915(e)(1).

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Even assuming that Plaintiff has demonstrated that he is likely to succeed on the

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merits of his claim,2 Plaintiff has yet to establish that he is unable to articulate his claims

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“in light of the complexity of the legal issues involved,” and that “exceptional

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circumstances exist.” To date, Plaintiff has shown that he is capable of intelligently

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arguing his position and has demonstrated an understanding of the law and facts relating

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to his claim against Defendants. For example, most recently, Plaintiff successfully

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opposed Defendants’ motion for summary judgment on the issue of Plaintiff’s failure to

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exhaust his administrative remedies. (Doc. 109). Plaintiff’s opposition included a

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succinct recitation of the facts, presented clear and cogent arguments based on the

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applicable law, and even included a contravening statement of facts complete with

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attached contributions to the record for the Court to consider. (Doc. 81; Doc. 82). In

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short, Plaintiff substantially complied with the requirements of Fed. R. Civ. P. 56, and

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successfully argued that a genuine issue of material fact exists with respect to exhaustion

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of available administrative remedies. Plaintiff’s successful opposition of Defendants’

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dispositive motion continues the trend of Plaintiff submitting briefs and motions that

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make clear points and present arguments effectively. The pending motion, while

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substantially similar to prior motions to appoint counsel, still presents clear, sound

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arguments and relies on newly cited and applicable persuasive authority.

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Plaintiff has successfully shown that a genuine dispute exists as to whether he
exhausted his available administrative remedies in accordance with the PLRA’s
requirements.
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As the Magistrate Judge previously noted, “[i]f all that was required to establish

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successfully the complexity of the relevant issues was a demonstration of the need for

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development of further facts, practically all cases would involve complex legal issues.”

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Wilborn, 789 F.2d at 1331. The Court is cognizant of Plaintiff’s pro se status, and his lack

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of experience in conducting cross examination and, generally, with in-court litigation.

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But Plaintiff has “demonstrated sufficient writing ability and legal knowledge to

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articulate his claim,” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), and has

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“repeatedly proven himself to be an able litigant” through the submission of “well-

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articulated motions to date.” Dunsmore, 2013 U.S. Dist. LEXIST 153656, at *4; see also

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Palmer, 560 F.3d at 970 (finding no abuse of discretion where the district court refused to

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appoint counsel in light of pro se prisoner’s ability to “present evidence effectively” and

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to do “quite a good job” litigating his case); Agyeman, 390 F.3d at 1103; Terrell, 935

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F.2d at 1017. Moreover, the issue of exhaustion will be adjudicated by a bench trial,

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allowing the Court to take special precautions to “avoid undue prejudice to the pro se

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litigant.” Abdullah v. Gunter, 949 F.2d 1032, 1036 (8th Cir. 1991).

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In sum, Plaintiff has failed to differentiate himself from the position of many pro

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se prisoner litigants, (Doc. 57), and has demonstrated that he is able to “articulate his

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claims” in light of the relative complexity of the matter. See Morgai, 2012 U.S. Dist.

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LEXIS 102432, at *11 (citation omitted) (noting that the traditional difficulties “which

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any litigant would have proceeding pro se . . . do not indicate exceptional factors”);

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Miller v. Lamontagne, 2012 U.S. Dist. LEXIS 66452, at *1 (S.D. Cal. May 11, 2012)

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(noting that traditional access and logistical difficulties merely demonstrate the

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difficulties any prisoner would have litigating pro se and do not constitute exceptional

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circumstances). The exceptional circumstances that might require appointment of counsel

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are not present, Wilborn, 789 F.2d at 1331, accord Palmer, 560 F.3d at 970, and the

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Court will deny Plaintiff’s motion accordingly.

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IV.

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For the aforementioned reasons,

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

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112), is hereby DENIED.
Dated this 12th day of May, 2016.

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