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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARNELL DUKES, CIVIL NO. 09-1463-L(WVG) 12 Plaintiff, 13 v. 14 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL (Doc. # 61) K. SPENCE, et al., 15 Defendants. 16 17 18 On October 21, 2011, Plaintiff filed a Motion for Appointment 19 of Counsel. 20 of counsel because he cannot afford to pay counsel, has limited 21 access to the law library, has limited time to study available legal 22 materials and conduct legal research, has no knowledge of the 23 Federal Rules, and has no legal education. Further, he alleges that 24 he has been diagnosed with brain damage, is being deprived of needed 25 medication, 26 symptoms. Plaintiff claims that he is entitled to the appointment and continues to suffer from various neurological 27 28 -1- 09cv1463 1 Defendants filed an Opposition to Plaintiff’s Motion. 2 Defendants argue that there are no exceptional circumstances present 3 to justify appointment of counsel for Plaintiff in this case. 4 “[T]here is no absolute right to counsel in civil proceedings.” 5 Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 6 (9th Cir. 1994) (citation omitted). Thus, federal courts do not have 7 the authority “to make coercive appointments of counsel.” 8 v. United States District Court, 490 U.S. 296, 310 (1989); see also 9 United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th 10 Cir. 1995). Districts courts have discretion, however, pursuant to 11 28 U.S.C. § 1915(e)(1),1/ to “request” that an attorney represent 12 indigent 13 circumstances. 14 1991); Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). 15 “To show exceptional circumstances the litigant must demonstrate the 16 likelihood of success and complexity of the legal issues involved.” 17 Burns, 883 F.2d at 823 (citation omitted); Hedges, 32 F.3d at 1363; 18 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). 19 the likelihood of success nor the complexity of the case are 20 dispositive; both must be considered. 21 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; 22 Here, Plaintiff does not present any evidence that he is likely 23 to prevail in this case. In fact the contrary appears to be true. 24 [Declaration of Janine K. Jeffrey In Opposition To Plaintiff’s 25 26 27 28 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). -2- 09cv1463 1 Motion For Appointment of Counsel, hereafter “Jeffrey Dec.”, Exh. A, 2 (Plaintiff’s Deposition), at 25, 27-28, 32, 35-37, Exhs. B, C]. 3 Further, Plaintiff has been able to articulate his claims, 4 which do not present complex legal issues. 5 was beaten by Defendants after he was handcuffed. His case does not 6 present any complex legal issues. Plaintiff claims that he 7 On June 4, 2010, Petitioner attended a settlement conference in 8 which he spoke with the Court. Plaintiff spoke clearly about his 9 claims and their potential for success. The Court did not discern 10 any problems with Plaintiff’s cognitive abilities and observed that 11 Plaintiff had a good grasp of the legal issues involved in this 12 case. 13 Moreover, the Court presumes that Plaintiff will be able to 14 testify at trial and call witnesses on his behalf. This is true 15 especially in light of the fact that on March 1, 2011, Plaintiff 16 represented himself in a bench trial, wherein he caused the Court to 17 subpoena witnesses to testify on his behalf and cross-examined 18 witnesses. (Jeffrey Dec. at 2-3). 19 Finally, Plaintiff’s assertion that doctors diagnosed him with 20 brain damage due to Defendants’ use of excessive force on him is 21 belied by the evidence presented to the Court. (Jeffrey Dec., Exhs. 22 B, C, D, E, F). Likewise, his assertion that he is not receiving his 23 prescribed medications is also belied by the evidence presented to 24 the Court. (Jeffrey Dec., Exhs. D, F, G, J, K, L, M). Instead, it 25 appears that Plaintiff disagrees with the dosages of medications he 26 has been prescribed, despite having discussed the dosages with his 27 doctors. 28 -3- 09cv1463 1 Under these circumstances, the Court DENIES Plaintiff’s Motion 2 for Appointment of Counsel because it is not warranted by the 3 interests of justice. 4 1987). LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 5 6 DATED: December 13, 2011 7 8 9 Hon. William V. Gallo U.S. Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 09cv1463

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