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Brisken v. Griego

United States District Court, D. Arizona

October 27, 2017

Jhon Nigel Brisken, Plaintiff,
v.
Unknown Griego, et al., Defendants.

          ORDER

          Eileen S. Willett, United States Magistrate Judge.

         This is a civil rights action initiated by Arizona state prisoner Jhon Nigel Brisken (“Plaintiff”) pursuant to 42 U.S.C. § 1983. On March 30, 2017, the Court ordered (i) Defendants Beare and Gilwrath to answer Count One of the Third Amended Complaint and (ii) Defendants Thomas and Griego to answer Counts Two and Three of the Third Amended Complaint. (Doc. 19 at 5). Pending before the Court are several motions discussed below.

         I. DISCUSSION

         A. “Request for Discovery” (Doc. 43)

         Federal Rules of Civil Procedure Rule 5(d) states that “the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission.” LRCiv 5.2 provides that “[a] ‘Notice of Service' of the disclosures and discovery requests and responses listed in Rule 5(d) of the Federal Rules of Civil Procedure must be filed within a reasonable time after service of such papers.”

         Plaintiff propounds a number of discovery requests in his Request filed on August 9, 2017 (Doc. 43), which the Clerk of Court has docketed as a “Motion (Request) for Discovery.” Plaintiff has not “used” these discovery requests in the proceeding (e.g. by relying upon responses in support of a motion, supporting a motion to compel, etc.). Therefore, Plaintiff's filing of the actual discovery requests instead of a “Notice of Service” is in violation of LRCiv 5.2 and Rule 5(d) of the Federal Rules of Civil Procedure. Accordingly, Plaintiff's Request for Discovery (Doc. 43) shall be stricken. August 9, 2017 is deemed the date of service of Plaintiff's Request for Discovery.[1]

         The Court notes that Plaintiff requests that the Court send to the Plaintiff another two blank complaint forms (Doc. 43 at 6). On June 6, 2017, the Court ordered the Clerk of Court to mail to Plaintiff a blank complaint form. The docket reflects that the Clerk of Court did so on June 6, 2017. The Court again will order the Clerk of Court to mail to Plaintiff two blank complaint forms as requested.

         B. Motion to Appoint Counsel (Doc. 45)

         On April 24, 2017, Plaintiff requested that the Court appoint him counsel (Doc. 20). The Court denied the request (Doc. 22).

         On August 11, 2017, Plaintiff again requests in further detail that the Court appoint Plaintiff counsel because (i) he is indigent, not trained in the law, receives medication for mental health, and possesses a sixth grade education, (ii) he is unable to investigate and prosecute his case due to his segregation status and limited access to the law library, (iii) he anticipates the need for medical experts, (iv) discovery and legal issues are complex, (v) he has limited access to pens and paper, and (vi) Plaintiff wishes to pursue a class action lawsuit (Docs. 45, 55, 56).

         In the alternative, Plaintiff requests that the Court send him a list of lawyers that Plaintiff can write to who specialize in his type of case (Doc. 56 at 5).

         As the Court previously explained in its denial of Plaintiff's first request for counsel, there is no constitutional right to the appointment of counsel in a civil case. See Johnson v. U.S. Dep't of Treasury, 939 F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In pro se and in forma pauperis proceedings, district courts do not have the authority “to make coercive appointments of counsel.” Mallard v. United States District Court, 490 U.S. 296, 310 (1989). District courts, however, do have the discretion to request that an attorney represent an indigent civil litigant upon a showing of “exceptional circumstances.” 28 U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to exceptional circumstances requires an evaluation of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these factors is dispositive and both must be viewed together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

         Plaintiff's filings with the Court continue to indicate that Plaintiff is capable of navigating this proceeding and presenting arguments to the Court. Having considered the likelihood of success on the merits and Plaintiff's continued ability to articulate his claims, the Court does not find that exceptional circumstances are present that would require the appointment of counsel in this case. Plaintiff remains in a position no different than many pro se prisoner litigants. The Court will deny Plaintiff's second Motion to Appoint Counsel (Doc. 45). The Court does not provide lists of attorneys to litigants. Plaintiff's previous request for a list of attorneys from the Arizona State Bar was referred to the District Judge for ruling as a request for injunctive relief (Doc. 29).

         C. “To the Courts” (Doc. 42) and “Plaintiff's Motion to File a 4th ...


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