Free Response in Opposition to Motion - District Court of Arizona - Arizona

Sid A. Horwitz--State Bar No. 05447 CARMICHAEL & POWELL, P.C. 2 7301 North 16th Street, Ste. 103 Phoenix, Arizona 85020-5297 3 Phone: (602) 861-0777
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Attorneys for Charlie and Edie Fletcher

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA RODNEY ALLEN KELLEY, Plaintiff, v. GLEN F. KELLEY, Defendant. OPPOSITION TO PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL No. CV04-103-PHX-SRB(ECV)

CARMICHAEL & POWELL

PROFESSIONAL CORPORATION ATTORNEYS AT LAW 7301 NORTH 16TH STREET, SUITE 103 PHOENIX, ARIZONA 85020-5297 (602) 861-0777

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Defendants Charlie and Edie Fletcher (the "Fletchers") oppose Plaintiff's Motion for Appointment of Counsel. This Opposition is supported by the attached and incorporated Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. Standard For the Appointment of Counsel. There is neither a constitutional nor statutory right to counsel in federal civil cases. Mallard v. United States District Court for the S. Dist. Of Iowa, 490 U.S. 296, 109 S.Ct. 1814 (1989); Farmer v. Haas, 990 F.2d 319 (7th Cir. 1993). Rather, 28 U.S.C.S. § 1915(e)(1) states, "the court may request an attorney to represent any person unable to afford counsel." Thus, this statute creates a privilege, not a right. Spears v. United States, 266 F.Supp 22 (S.D. W. VA. 1967). The Ninth Circuit has held that 28 U.S.C.S. § 1915(e)(1) allows the trial court to appoint counsel in a civil case only under "exceptional circumstances." Rand v. Rowland, 113 F.3d 1520 (9th Cir. 1997); Terrell v. Brewer, 935 F.2d 1015

Case 2:04-cv-00103-SRB-ECV

Document 66

Filed 11/06/2006

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(9th Cir. 1991). To determine whether "exceptional circumstances" exist, the court must find that plaintiff has a likelihood of success on the merits and plaintiff lacks the ability to articulate his claims in light of the complexity of the legal issues involved. Rand, 113 F.3d at 1525; Terrell, 935 F.2d at 1017. II. Plaintiff's Motion Does Not Demonstrate the Necessary Exceptional Circumstances: He Has Shown the Ability to Articulate His Claims and They are Weak at Best. Plaintiff's Motion for Appointment of Counsel generally alleges that his claim has merit; however, like the moving party in Rand, Plaintiff offers no evidence which proves that he has the requisite likelihood of success. Rand, 113 F.3d at 1525. A review of this file will reveal that Plaintiff's complaints stem from a prior probate proceeding which has already concluded. There is nothing novel or complex about Plaintiff's Complaint against his brother, Glen F. Kelley and the Fletchers. Plaintiff's Motion evidences that he has more then an adequate ability to set forth evidence and legal arguments. Like the moving party in Terrell, Plaintiff has shown "sufficient writing ability and legal knowledge to articulate his claim." Terrell, 935 F.2d at 1017. In his Motion, Plaintiff makes reference to his alleged bipolar disorder, even going so far as to analogize its effect on him to that of a paraplegic. However, Plaintiff fails to explain how his alleged disorder is preventing him from articulating his claims. Rather, Plaintiff's Motion for Appointment of Counsel is well-organized and shows a sufficient understanding of the law and its applicability to his claim. Plaintiff has done nothing to prove that his disorder has any sort of debilitating effect on his capacity to prosecute his claims. Thus, given the simplicity of his Complaint, Plaintiff has failed to prove that he is unable to

CARMICHAEL & POWELL

PROFESSIONAL CORPORATION ATTORNEYS AT LAW 7301 NORTH 16TH STREET, SUITE 103 PHOENIX, ARIZONA 850020-5297 (602) 861-0777

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articulate his positions. Rand, 113 F.3d at 1525. In civil actions, appointment of counsel should be allowed only in exceptional cases. Rand, 113 F.3d at 1525; Terrell, 935 F.2d at 1017. Plaintiff's situation is in no way exceptional. Thus, appointment of counsel under these circumstances should be denied. DATED this 6th day of November, 2006. CARMICHAEL & POWELL, P.C.

CARMICHAEL & POWELL

PROFESSIONAL CORPORATION ATTORNEYS AT LAW 7301 NORTH 16TH STREET, SUITE 103 PHOENIX, ARIZONA 850020-5297 (602) 861-0777

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By: s/Sid Horwitz Sid A. Horwitz 7301 North 16th Street, Ste. 103 Phoenix, Arizona 85020 Attorneys for Charlie and Edie Fletcher

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