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Brogdon v. City of Phoenix Police Department

United States District Court, Ninth Circuit

June 19, 2013

George Albert Brogdon, Jr., Plaintiff,
v.
City of Phoenix Police Department; Officer Mylen Lubker; Officer Eric Boardman, Defendants.

ORDER

ROBERT C. BROOMFIELD, Senior District Judge.

Pending before the court is plaintiff pro se George Albert Brogdon, Jr.'s third Motion for Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1) (Doc. 60). Despite three attempts, still, plaintiff has not made the predicate showing of "exceptional circumstances" which the Ninth Circuit requires to warrant appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Agyeman v. Corr. Corp. of Am. , 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting Franklin v. Murphy , 745 F.2d 1221, 1236 (9th Cir. 1984)) (District courts have discretion pursuant to section 1915(e)(1) to appoint counsel for indigent civil litigants "only in exceptional circumstances.'"). Accordingly, as discussed below, the court denies plaintiff's motion for appointment of counsel.

Background

Plaintiff's current motion, although not identical, is substantially similar to his prior two motions, which were denied. As before, the plaintiff declares that: (1) he is "unable to afford counsel[;]" (2) he has been "granted leave to proceed in forma pauperis[;]" and (3) his "imprisonment will greatly limit his ability to litigate." Compare Mot. (Doc. 60) at 1, ¶¶ 1-2 with Mot. (Doc. 37) at 1, ¶¶ 1-2 and Mot. (Doc. 23) at 1, ¶¶ 1-2. Also as before, plaintiff states that "counsel would better enable [him] to present evidence and cross-examine witnesses[]" at trial. Compare id. at 1, ¶ 3 with Mot. (Doc. 37) at 1, ¶ 3 and Mot. (Doc. 23) at 2, ¶ 3. In contrast to his earlier motions, however, this time, rather than simply anticipating trial, as the plaintiff indicates, the case is trial ready. Indeed, the parties have been ordered, among other things, to lodge a Proposed Joint Pretrial Order shortly. See Ord. (Doc. 59).

Continuing to oppose plaintiff's motion, the defendants argue, as they did previously, that he has not shown the requisite "exceptional circumstances" for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). The court agrees.

Discussion

In a 42 U.S.C. § 1983 action such as this, "[t]here is no constitutional right to appointed counsel[.]" Rand v. Rowland , 113 F.3d 1520, 1525 (9th Cir. 1997) (citation omitted), partially overruled en banc on other grounds, 154 F.3d 952, 954 n. 1 (9th Cir. 1998)); see also Hedges v. Resolution Trust Corp. , 32 F.3d 1360, 1353 (9th Cir. 1994) ("[T]here is no absolute right to counsel in civil proceedings.") Therefore, federal courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States District Court , 490 U.S. 296, 310, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989). By the same token though, pursuant to 28 U.S.C. § 1915(e)(1), a "court may request an attorney to represent any person unable to afford counsel." Such a request is predicated upon a showing of exceptional circumstances. See Agyeman , 390 F.3d at 1103.

A finding of exceptional circumstances "requires at least an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims in light of the complexity of the legal issues involved.'" Id . (quoting Wilborn v. Escalderon , 789 F.2d 1328, 1331 (9th Cir. 1986)). "Neither of these factors is dispositive and both must be viewed together before reaching a decision.'" Terrell v. Brewer , 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn , 789 F.2d at 1331). In the end, the burden remains upon the plaintiff to establish exceptional circumstances. See Thornton v. Schwarzenegger, 2010 WL 3910446, at *5 (S.D.Cal.2010) (denying section 1915(e)(1) motion for appointment of counsel where plaintiff "failed to demonstrate either a likelihood of success on the merits or an inability to represent himself (beyond the ordinary burdens encountered by prisoners representing themselves pro se) [ ]"). Plaintiff Brogdon has not met this burden.

Plaintiff does not offer (nor has he previously) any argument whatsoever as to his likelihood of success on the merits. Likewise, plaintiff Brogdon has not shown "that because of the complexity of the claims he [has been] unable to articulate his positions." See Rand , 113 F.3d at 1525. Indeed, the record demonstrates just the opposite. Remaining for trial is a straightforward "Fourth Amendment claim... alleging that [defendants] Boardman and Lubker lacked reasonable suspicion to stop and detain Plaintiff." Ord. (Doc. 57) at 13:1-2, ¶ 4. This case is not factually or legally complex. Nor does it involve a large number of parties or issues.

What is more, as the record reflects, the plaintiff has shown an ability to more than adequately articulate his position. Plaintiff "has been able to articulate his claims..., as the Court found that [his] complaint contained allegations sufficient to survive the [statutorily mandated] sua sponte screening" process. See Miller v. LaMontagne, 2012 WL 1666735, at *2 (S.D.Cal.2012). Additionally, during the two year pendency of this lawsuit, plaintiff has filed numerous motions with some success. Indeed, he partially withstood defendants' motion to dismiss, as well as their summary judgment motion. Thus, plaintiff has shown that he is capable of navigating the legal process.

Even if, as plaintiff claims, his confinement "will greatly limit his ability to litigate[, ]" Mot. (Doc. 60) at 1, that asserted limitation does not establish complexity of the issues or otherwise show exceptional circumstances. Finally, although, as plaintiff states, an attorney "would better enable plaintiff to present evidence and cross-examine witnesses[, ]" id., that is not a sufficient basis for finding exceptional circumstances. See Thornton, 2010 WL 3910446, at *5 (citing Rand , 113 F.3d at 1525) ("factual disputes and anticipated cross-examination of witnesses do not indicate a presence of complex legal issues warranting a finding of exceptional circumstances").

For all of these reasons, on this record the court finds that the "exceptional circumstances" necessary for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) are absent. Accordingly, the court hereby DENIES plaintiff's Motion for Appointment of Counsel (Doc. 60).


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