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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WO 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eulandas J. Flowers, No. CV-14-08184-PCT-JAT Plaintiff, 10 11 v. 12 ORDER Sandra Lawrence, et al, 13 Defendants. 14 Pending before the Court is Plaintiff Eulandas Flowers’s Motion to Appoint 15 Counsel pursuant to Title 28 U.S.C. § 1915(e)(1) (2012), (Doc. 112), his Declaration in 16 Support of Motion to Appoint Counsel, (Doc. 113), and his Memorandum of Law in 17 Support of Motion to Appoint Counsel. (Doc. 114). The Magistrate Judge has twice 18 denied Plaintiff’s motion to appoint counsel, finding that Plaintiff “failed to show that 19 exceptional circumstances” were present in his case. (Doc. 18; Doc. 57). The Court now 20 rules on the pending motion. 21 22 I. 23 The instant matter is a prisoner civil rights case brought pursuant to 42 U.S.C. § 24 1983, alleging Eighth Amendment claims against Defendants for use of excessive force, 25 failure to intervene, and deliberate indifference. (Doc. 109). On April 25, 2016, the Court 26 found that there was a materially disputed issue of fact as to whether Plaintiff had 27 exhausted available administrative remedies in accordance with the Prison Litigation 28 Reform Act (“PLRA”), Title 42 U.S.C. 1997e(a) (2012), and set for June 16, 2016, the 1 exhaustion issue for bench trial. (Doc. 116). On May 5, 2016, Plaintiff filed the pending 2 motion for appointment of counsel. 3 4 II. 5 There is no constitutional right to the appointment of counsel in a civil case. See 6 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Johnson v. U.S. Dep’t of Treasury, 7 939 F.2d 820, 824 (9th Cir. 1991). But the Court may appoint counsel for an indigent 8 civil litigant pursuant to 28 U.S.C. § 1915(e)(1) under “exceptional circumstances.”1 9 Palmer, 560 F.3d at 970 (quoting Agyeman, 390 F.3d at 1103). “When determining 10 whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of 11 success on the merits as well as the ability of the petitioner to articulate his claims pro se 12 in light of the complexity of the legal issues involved.’” Id. (quoting Weygandt v. Look, 13 718 F.2d 952, 954 (9th Cir. 1983)). These two considerations must be analyzed together; 14 neither is dispositive. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 15 16 III. 17 Plaintiff’s motion rests on the assertions that his case is complex, his ability to 18 investigate is extremely limited due to his segregated incarceration, there is conflicting 19 testimony present in the record, he is indigent, and that he has a likelihood of succeeding 20 on the merits of his case. (Doc. 114 3-6). The Court notes that Plaintiff’s supporting 21 memoranda is substantially similar—indeed identical in many respects—to the 22 memoranda filed previously. (See Doc. 52; Doc. 16). Twice before, the Magistrate Judge 23 found that Plaintiff failed to demonstrate a likelihood of success on the merits, and had 24 not shown that he was “experiencing difficulty in litigating this case because of the 25 26 27 28 1 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)). -2- 1 complexity of the issues involved.” (Doc. 15 at 2; Doc. 53 at 2). At this stage of the 2 proceedings, the Court must more closely scrutinize Plaintiff’s inability to “handle issues 3 of conflicting testimony and credibility on his own,” particularly where Plaintiff’s claim 4 will be tried by a jury. Eusse v. Vitela, 2015 U.S. Dist. LEXIS 93441, at *6 (S.D. Cal. 5 July 16, 2015); Morgai v. Maricopa County Board of Supervisors, No. CIV 07-0670- 6 PHX-RCB, 2012 U.S. Dist. LEXIS 102432, at *10 (D. Ariz. July 24, 2012). Nonetheless, 7 having reviewed Plaintiff’s motion and supporting memorandum, the Court finds that 8 Plaintiff has failed to carry his burden under 28 U.S.C. § 1915(e)(1). 9 Even assuming that Plaintiff has demonstrated that he is likely to succeed on the 10 merits of his claim,2 Plaintiff has yet to establish that he is unable to articulate his claims 11 “in light of the complexity of the legal issues involved,” and that “exceptional 12 circumstances exist.” To date, Plaintiff has shown that he is capable of intelligently 13 arguing his position and has demonstrated an understanding of the law and facts relating 14 to his claim against Defendants. For example, most recently, Plaintiff successfully 15 opposed Defendants’ motion for summary judgment on the issue of Plaintiff’s failure to 16 exhaust his administrative remedies. (Doc. 109). Plaintiff’s opposition included a 17 succinct recitation of the facts, presented clear and cogent arguments based on the 18 applicable law, and even included a contravening statement of facts complete with 19 attached contributions to the record for the Court to consider. (Doc. 81; Doc. 82). In 20 short, Plaintiff substantially complied with the requirements of Fed. R. Civ. P. 56, and 21 successfully argued that a genuine issue of material fact exists with respect to exhaustion 22 of available administrative remedies. Plaintiff’s successful opposition of Defendants’ 23 dispositive motion continues the trend of Plaintiff submitting briefs and motions that 24 make clear points and present arguments effectively. The pending motion, while 25 substantially similar to prior motions to appoint counsel, still presents clear, sound 26 arguments and relies on newly cited and applicable persuasive authority. 27 2 28 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. -3- 1 As the Magistrate Judge previously noted, “[i]f all that was required to establish 2 successfully the complexity of the relevant issues was a demonstration of the need for 3 development of further facts, practically all cases would involve complex legal issues.” 4 Wilborn, 789 F.2d at 1331. The Court is cognizant of Plaintiff’s pro se status, and his lack 5 of experience in conducting cross examination and, generally, with in-court litigation. 6 But Plaintiff has “demonstrated sufficient writing ability and legal knowledge to 7 articulate his claim,” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), and has 8 “repeatedly proven himself to be an able litigant” through the submission of “well- 9 articulated motions to date.” Dunsmore, 2013 U.S. Dist. LEXIST 153656, at *4; see also 10 Palmer, 560 F.3d at 970 (finding no abuse of discretion where the district court refused to 11 appoint counsel in light of pro se prisoner’s ability to “present evidence effectively” and 12 to do “quite a good job” litigating his case); Agyeman, 390 F.3d at 1103; Terrell, 935 13 F.2d at 1017. Moreover, the issue of exhaustion will be adjudicated by a bench trial, 14 allowing the Court to take special precautions to “avoid undue prejudice to the pro se 15 litigant.” Abdullah v. Gunter, 949 F.2d 1032, 1036 (8th Cir. 1991). 16 In sum, Plaintiff has failed to differentiate himself from the position of many pro 17 se prisoner litigants, (Doc. 57), and has demonstrated that he is able to “articulate his 18 claims” in light of the relative complexity of the matter. See Morgai, 2012 U.S. Dist. 19 LEXIS 102432, at *11 (citation omitted) (noting that the traditional difficulties “which 20 any litigant would have proceeding pro se . . . do not indicate exceptional factors”); 21 Miller v. Lamontagne, 2012 U.S. Dist. LEXIS 66452, at *1 (S.D. Cal. May 11, 2012) 22 (noting that traditional access and logistical difficulties merely demonstrate the 23 difficulties any prisoner would have litigating pro se and do not constitute exceptional 24 circumstances). The exceptional circumstances that might require appointment of counsel 25 are not present, Wilborn, 789 F.2d at 1331, accord Palmer, 560 F.3d at 970, and the 26 Court will deny Plaintiff’s motion accordingly. 27 28 IV. -4- 1 For the aforementioned reasons, 2 IT IS ORDERED that Plaintiff’s Motion for Appointment of Counsel, (Doc. 3 4 112), is hereby DENIED. Dated this 12th day of May, 2016. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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