Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Newman v. Show Low Police Department

United States District Court, Ninth Circuit

June 10, 2013

Joe Newman, Plaintiff,
v.
Show Low Police Department; Steve Williams; Officer Spears; Officer Fechtelkotter; Officer Roby; Officer Douglas; Torel Nichols; and Commander McNeil, Defendants.

ORDER

JAMES A. TEILBORG, District Judge.

Pending before the Court are (1) Plaintiff's Motion for Extension of Time/Third Motion to Appoint Counsel (Doc. 22), (2) Defendant Torel Nichols' Motion to Dismiss (Doc. 14), (3) Defendants Show Low Police Department, Steven L. Williams, Jason Spear, Shawn T. Roby, Cory L. Fechtelkotter, Kenneth E. Douglass, and Jeff McNeil's Joinder in Defendant Torel Nichols' Motion to Dismiss (Doc. 24), and (4) Defendants' Motion for Hearing or Conference (Doc. 26).

I. BACKGROUND

On January 8, 2013, Plaintiff filed a Complaint against Defendants. In his Complaint, Plaintiff alleges that he was physically injured when Show Low Police officers assaulted him with excessive force on January 27, 2011. (Doc. 1 at 1). Plaintiff also alleges that Steve Williams "along with the other named officers" falsely arrested Plaintiff on January 27, 2011. ( Id. ).

Plaintiff also filed a Motion to Appoint Counsel on January 8, 2013. The Court denied the Motion reasoning that:

There is no constitutional right to appointment of counsel in a civil case. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). The Court, however, does have the discretion to appoint counsel in "exceptional circumstances." See 28 U.S.C. ยง 1915; Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). In order to determine whether exceptional circumstances exist, the Court evaluates the plaintiff's "likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his or her claim pro se in light of the complexity of the legal issues involved.'" Richard v. Harper, 864 F.2d 85, 87 (9th Cir. 1988) (quoting Weygant v. Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Wilborn, 789 F.2d at 1331. Neither factor is determinative, and the Court must consider both factors before reaching a decision on a request for appointment of counsel. See Wilborn, 789 F.2d at 1331.

At this stage of the litigation, the Court is unable to determine whether Plaintiff will succeed on the merits. The Court has read the complaint and finds that Plaintiff is able to articulate his claims pro se, and that the issues presented are not particularly complex.

Accordingly, the Court will deny appointment of counsel at this time.

Doc. 6.

Thereafter, on February 5, 2013, Plaintiff filed another Motion to Appoint Counsel, apparently seeking reconsideration of the Court's prior Order denying the Motion to Appoint Counsel. The Court again denied that request finding that Plaintiff had provided no reason for the Court to reconsider its prior Order.

Plaintiff has now filed a third Motion to Appoint Counsel. On April 16, 2013, Defendant Torel Nichols moved to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Thereafter, on May 7, 2013, Plaintiff filed a "Supplement Amendment to Complaint" (Doc. 23), wherein he attempts to supplement the allegations of his Complaint as alleged against Defendant Torel Nichols. On May 9, 2013, the remaining Defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court now rules on the Motions.

II. PLAINTIFF'S MOTION FOR EXTENSION OF TIME/THIRD MOTION TO APPOINT COUNSEL (DOC. 22)

In his Motion for Extension of Time/Third Motion to Appoint Counsel, Plaintiff states that he broke his hip on April 27, 2013 and is not to use his leg for 6-8 weeks. (Doc. 22 at 1). Plaintiff also states that he will not know if another procedure is required for another 24 months. ( Id. ). Plaintiff claims that a continuance of this case is required "because the plaintiff is now unable to conduct himself while he is under and in assisted nursing facility for a broken hip and is and will be receiving extended treatment and therapy." ( Id. at 1). Plaintiff finally argues that, in light of his "current health obstacles and including the expected kidney cancer surgery and the medical treatment for fibromyalgia[, ] the plaintiff needs an appointed counsel." ( Id. ).

With regard to Plaintiff's Third Request for Appointed Counsel, Plaintiff has again failed to meet the standard for appointing counsel as specified in the Court's prior two Orders denying Plaintiff counsel. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.