Dukes v. Spence et al
Filing
67
ORDER denying 61 Plaintiff's Motion for Appointment of Counsel. Signed by Magistrate Judge William V. Gallo on 12/13/2011. (All non-registered users served via U.S. Mail Service)(mtb)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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DARNELL DUKES,
CIVIL NO. 09-1463-L(WVG)
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Plaintiff,
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v.
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ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
COUNSEL (Doc. # 61)
K. SPENCE, et al.,
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Defendants.
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On October 21, 2011, Plaintiff filed a Motion for Appointment
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of Counsel.
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of counsel because he cannot afford to pay counsel, has limited
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access to the law library, has limited time to study available legal
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materials and conduct legal research, has no knowledge of the
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Federal Rules, and has no legal education. Further, he alleges that
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he has been diagnosed with brain damage, is being deprived of needed
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medication,
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symptoms.
Plaintiff claims that he is entitled to the appointment
and
continues
to
suffer
from
various
neurological
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09cv1463
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Defendants
filed
an
Opposition
to
Plaintiff’s
Motion.
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Defendants argue that there are no exceptional circumstances present
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to justify appointment of counsel for Plaintiff in this case.
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“[T]here is no absolute right to counsel in civil proceedings.”
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Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363
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(9th Cir. 1994) (citation omitted). Thus, federal courts do not have
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the authority “to make coercive appointments of counsel.”
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v. United States District Court, 490 U.S. 296, 310 (1989); see also
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United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th
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Cir. 1995). Districts courts have discretion, however, pursuant to
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28 U.S.C. § 1915(e)(1),1/ to “request” that an attorney represent
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indigent
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circumstances.
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1991); Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989).
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“To show exceptional circumstances the litigant must demonstrate the
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likelihood of success and complexity of the legal issues involved.”
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Burns, 883 F.2d at 823 (citation omitted); Hedges, 32 F.3d at 1363;
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Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).
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the likelihood of success nor the complexity of the case are
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dispositive; both must be considered.
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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
civil
litigants
upon
a
showing
of
Mallard
exceptional
See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
Neither
Terrell, 935 F.2d at 1017;
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Here, Plaintiff does not present any evidence that he is likely
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to prevail in this case. In fact the contrary appears to be true.
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[Declaration of Janine K. Jeffrey In Opposition To Plaintiff’s
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1/
28 U.S.C. § 1915 was substantially amended by the Prison Litigation
Reform Act of 1995, Pub. L. No. 104-134, Title VIII, §§ 801-10, 110 Stat. 1321-66
to 1321-77 (1996). Section 1915(e)’s counsel provisions were formerly codified
at 28 U.S.C. § 1915(d).
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09cv1463
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Motion For Appointment of Counsel, hereafter “Jeffrey Dec.”, Exh. A,
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(Plaintiff’s Deposition), at 25, 27-28, 32, 35-37, Exhs. B, C].
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Further, Plaintiff has been able to articulate his claims,
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which do not present complex legal issues.
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was beaten by Defendants after he was handcuffed. His case does not
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present any complex legal issues.
Plaintiff claims that he
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On June 4, 2010, Petitioner attended a settlement conference in
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which he spoke with the Court. Plaintiff spoke clearly about his
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claims and their potential for success. The Court did not discern
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any problems with Plaintiff’s cognitive abilities and observed that
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Plaintiff had a good grasp of the legal issues involved in this
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case.
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Moreover, the Court presumes that Plaintiff will be able to
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testify at trial and call witnesses on his behalf. This is true
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especially in light of the fact that on March 1, 2011, Plaintiff
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represented himself in a bench trial, wherein he caused the Court to
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subpoena witnesses to testify on his behalf and cross-examined
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witnesses. (Jeffrey Dec. at 2-3).
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Finally, Plaintiff’s assertion that doctors diagnosed him with
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brain damage due to Defendants’ use of excessive force on him is
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belied by the evidence presented to the Court. (Jeffrey Dec., Exhs.
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B, C, D, E, F). Likewise, his assertion that he is not receiving his
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prescribed medications is also belied by the evidence presented to
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the Court. (Jeffrey Dec., Exhs. D, F, G, J, K, L, M). Instead, it
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appears that Plaintiff disagrees with the dosages of medications he
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has been prescribed, despite having discussed the dosages with his
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doctors.
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Under these circumstances, the Court DENIES Plaintiff’s Motion
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for Appointment of Counsel because it is not warranted by the
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interests of justice.
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1987).
LaMere v. Risley, 827 F.2d 622, 626 (9th Cir.
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DATED:
December 13, 2011
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Hon. William V. Gallo
U.S. Magistrate Judge
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09cv1463
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