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Evans v. Ryan

United States District Court, D. Arizona

September 14, 2018

Ryan Evans, Plaintiff,
Charles Ryan, et al., Defendants.



         Pending before the Court is Ryan Evans' (“Plaintiff's”) Motion to Object pursuant to Fed.R.Civ.P. 72(a). (Doc. 220).

         I. Procedural Background

         Plaintiff filed a non-habeas civil action on January 26, 2017 alleging that Defendants violated his Eighth and Fourteenth Amendment rights, and were negligent under state law, by failing to provide Plaintiff adequate medical care related to a “fracture of his left [clavicle] suffered in a motor vehicle accident” while he was in the custody of the Arizona Department of Corrections (“ADC”) and while he was under the care of Corizon Correctional Health, Inc. (“Corizon”). (Doc. 1).

         On January 26, 2017, Plaintiff filed an application for leave to proceed in forma pauperis. (Doc. 2).

         On May 23, 2018, Plaintiff filed his third motion [1] for appointment of counsel. (Doc. 209). Plaintiff asserted that his case was complex by the virtue that it involved a denial of medical treatment, and that he needed assistance to prepare for trial due to his lack of legal training. (Id.) On June 5, the Magistrate Judge denied Plaintiff's third motion for appointment of counsel because: (1) there is no constitutional right to the appointment of counsel in a civil case; and (2) Plaintiff had not shown “exceptional circumstances” as required by the Ninth Circuit to warrant appointment of counsel by the Court pursuant to 28 U.S.C. § 1915(e)(1). (Doc. 210). The Magistrate Judge found Plaintiff's claim that his case was complex conclusory and noted that appointment of counsel to prepare for trial would be premature because the case had not been set for trial and the dispositive motions deadline had not expired. (Id.)

         On June 15, Plaintiff filed a motion to reconsider the Magistrate Judge's order denying his motion to appoint counsel. (Doc. 217). On June 19, the Magistrate Judge denied this motion. (Doc. 218).

         On July 19, Plaintiff filed a motion to object to the Magistrate Judge's decision to deny Plaintiff's motion for reconsideration of appointment of counsel, (Doc. 220), which this Court treats as an appeal from the Magistrate Judge.

         II. Governing Law

         In nondispositive matters, a district judge “must consider timely [2] objections and modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). To determine that a matter is nondispositive, the Court must “examine whether the denial of the motion effectively disposes of a claim or defense or precludes the ultimate relief sought.” Bastidas v. Chappell, 791 F.3d 1155, 1164 (9th Cir. 2015).

         Under the District of Arizona's Local Rules of Civil Procedure (“Local Rules”), a district judge “will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g). The Local Rules operate with the “force of law” and bind the Court and the parties. Prof'l Programs Grp. v. Dep't of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994) (quoting Martel v. Cty. of Los Angeles, 21 F.3d 940, 946-47 (9th Cir. 1994)). Furthermore, although courts must construe pro se filings liberally, Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008), these rules apply equally to pro se litigants such as Plaintiff. LRCiv 83.3(c)(1); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per curiam) (upholding dismissal of pro se action where the prisoner failed to comply with a Nevada local rule).

         There is no constitutional right to appointed counsel in a civil case such as this one. Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985); see also Hedges v. Resolution Tr. Corp., 32 F.3d 1360, 1363 (9th Cir. 1994) (“[T]here is no absolute right to counsel in civil proceedings.”). A “court may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1) (emphasis added). Federal courts, however, have no authority to coercively appoint counsel under Section 1915. Mallard v. U.S. Dist. Court, 490 U.S. 296, 310 (1989). A court may only appoint counsel under Section 1915 under “exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). When determining whether exceptional circumstances exist, a court's decision should be “based on such factors as the likelihood of success on the merits and the ability of the plaintiff to articulate his claims in light of their complexity.” Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990) (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Neither factor is dispositive; “both must be viewed together before reaching a decision on request of counsel . . . .” Wilborn, 789 F.2d at 1331.

         III. Analysis

         The Magistrate Judge's order denying Plaintiff's motion for reconsideration of the previous order denying his motion requesting appointment of counsel is nondispositive. See Marquez v. Corizon Health Servs., 710 Fed.Appx. 301, 301 (9th Cir. 2018). That order did not dispose of any claims or defenses. Thus, this Court will ...

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