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Newman v. Show Low Police Department

United States District Court, D. Arizona

March 25, 2014

Joe Newman, Plaintiff,
Show Low Police Department, et al., Defendants.


JAMES A. TEILBORG, Senior District Judge.

Pending before the Court is Plaintiff's Motion to Appoint Counsel and Motion to Continue (Doc. 36) as well as Plaintiff's Motion for Reconsideration (Doc. 37). The Court now rules on the motions.

I. Background

The Court will recount only the relevant portions of the procedural history. On January 8, 2013, Plaintiff filed a Complaint against Defendants, alleging that Plaintiff was physically injured when Show Low Police officers assaulted him with excessive force on January 27, 2011. (Doc. 1 at 1). Plaintiff's First Amended Complaint stated claims against Defendants for Fourth and Sixth Amendment violations of his rights during Plaintiff's arrest and subsequent criminal conviction. (Doc. 28 at 1, 5, 9). On March 6, 2014, the Court dismissed Plaintiff's Fourth Amendment claims against some defendants, and dismissed Plaintiff's Sixth Amendment claims against all defendants. (Doc. 34 at 7-8).

Plaintiff has now filed two documents with the Court asking for relief. Although neither is captioned, the first appears to be a motion to appoint counsel as well as a motion to continue the Rule 16 Scheduling Conference. (Doc. 36). The second appears to be a motion for reconsideration to which Plaintiff attaches new evidence that he asserts supports his now-dismissed claims against Defendants. (Doc. 37).

II. Motion to Appoint Counsel

Plaintiff has filed numerous motions to appoint counsel in this case. Plaintiff first filed a Motion to Appoint Counsel on January 8, 2013, (Doc. 3), which the Court denied, reasoning:

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.

(Doc. 6 at 1-2).

Plaintiff subsequently filed another Motion to Appoint Counsel, (Doc. 7), which the Court denied, finding no "reason for the Court to reconsider its prior Order." (Doc. 8 at 2). Plaintiff then filed a third Motion to Appoint Counsel, which the Court also denied, finding Plaintiff had not met the standard for appointing counsel. (Doc. 27 at 3).

Plaintiff's fourth Motion to Appoint Counsel argues that he should be appointed counsel because he "can not afford one and because the doctor's order that [he] abstain from all stressful activities, since this is harmful to my current health condition and will also delay my recovery." (Doc. 36 at 1). Plaintiff again does not meet the standard for appointing counsel, for the reasons stated in the Court's prior three Orders. Accordingly, Plaintiff's Motion to Appoint Counsel is denied. The Court is sympathetic to Plaintiff's difficulties, but Plaintiff bears the responsibility for obtaining representation by counsel, if he desires such representation.

III. Motion to Continue

On March 6, 2014, following the resolution of Defendants' Motion to Dismiss, the Court issued an Order setting the Rule 16 Scheduling Conference for April 30, 2014. (Doc. 35). Plaintiff moves to continue this Scheduling Conference, arguing that he has "previous [sic] scheduled surgery at the U of A on [his] injured right kidney to be performed on 04/21/2014" with an "expected recovery of 6 weeks." (Doc. 36 at 1). In support, Plaintiff has attached a doctor's note from James A. Sielski, DO, dated March 14, 2014, which ...

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