Ashker v. Alameida et al

Filing 485

ORDER by Judge Claudia Wilken denying 481 Motion to Appoint Counsel (cwlc1, COURT STAFF) (Filed on 6/15/2010)

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On February 4, 2010, judgment entered in this case awarding Plaintiff Todd L. Ashker, an inmate at Pelican Bay State Prison (PBSP), money damages in the amount of $6,500 from Defendant Dr. Michael Sayre, Chief Medical Officer at PBSP, and injunctive relief on his breach of contract claim against Defendant Matthew Cate, in his official capacity as Director of the California Department of Corrections and Rehabilitation. Defendant Cate has appealed from v. MICHAEL SAYRE, et al., Defendants. / TODD L. ASHKER, Plaintiff, No. 05-03759 CW ORDER DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL ON APPEAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA the final judgment against him and the related order for specific performance and Plaintiff has cross-appealed. appointment of counsel on appeal. Pursuant to 28 U.S.C. 1915(e)(1), a court may appoint an attorney to represent any person unable to afford counsel. Counsel Plaintiff moves for may be appointed under exceptional circumstances, which requires a consideration of the likelihood of success on the merits and the 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ability of the pro se litigant to articulate his claims in light of the complexity of the legal issues involved. 935 F.2d 1015, 1017 (9th Cir. 1991). together in reaching a decision. Id. Terrell v. Brewer, Both factors must be reviewed There is little likelihood that Plaintiff will succeed on the merits of the claims contained in his cross-appeal and he is able to articulate them on appeal. Therefore, his motion for appointment of counsel to represent him on his cross-appeal is denied. It is likely that Plaintiff will succeed on the merits of Defendant Cate's appeal of the breach of contract claim and the related order for specific performance, but the issues are complex and it may be difficult for Plaintiff to represent himself as appellee. However, Plaintiff has not met his burden of showing In his declaration submitted that he is unable to afford counsel. in support of his motion, Plaintiff states, "I am not able financially to afford counsel to assist me on appeal. . . I only have a few grand left to my name, and have no other income. . ." Plaintiff also states that he has written to many attorneys to represent him on appeal, but they all declined. documentation of either point. In order to meet his burden of showing that he cannot afford counsel, Plaintiff must provide the following documentation: the last six months of statements from his prison trust account and his non-prison trust account; statements from any bank accounts he owns; copies of rejection letters he has received from attorneys indicating the fees they would charge; and any other documentation 2 He presents no 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that will demonstrate his inability to afford counsel. Based upon the foregoing, Plaintiff's motion for the appointment of counsel to represent him on his cross-appeal is denied and his motion for appointment of counsel to represent him on Defendant Cate's appeal is denied without prejudice to refiling with the documentation necessary to support his claim that he is unable to afford counsel. If Plaintiff substantiates his claim that he is unable to afford counsel, the Court will seek pro bono counsel to represent him. Plaintiff may also file a motion for appointment of counsel directly in the Ninth Circuit Court of Appeals for consideration under its Pro Bono Program. IT IS SO ORDERED. Dated: June 15, 2010 CLAUDIA WILKEN United States District Judge 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Todd A. Ashker C58191 Pelican Bay State Prison Box 7500 D1-119 Crescent City, CA 95532 Dated: June 15, 2010 ASHKER, Plaintiff, v. ALAMEIDA ET AL et al, Defendant. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case Number: CV05-03759 CW CERTIFICATE OF SERVICE / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on June 15, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Richard W. Wieking, Clerk By: Ronnie Hersler, Adm Law Clerk 4

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