Free Order on Motion to Appoint Counsel - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Timothy Lee Ward, Plaintiff -vsKarr, et al., Defendants CV-03-2159-PHX-ROS (JRI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration is Plaintiff's Motion to Appoint Counsel, filed April 22, 2008 (#141). Plaintiff seeks appointment of counsel pursuant to 28 U.S.C. § 1915(E)(1) on the basis of: (1) his in forma pauperis status; (2) the inconveniences of his incarceration; (3) the complexity of the issues; (4) the need for research and investigation; (5) the limited legal resources available to him in ADOC; (6) the filing of a motion for summary judgment with exhibits filed under seal; and (7) the need to respond to the motion for summary judgment. Defendants have responded (#145), voicing no objections, but noting that a prior request for counsel has been denied. The statute on which Plaintiff relies, 28 U.S.C. § 1915(e)(1), confers on the court the discretion to "request" counsel to represent an indigent civil litigant, but this circuit has limited the exercise of that power to "exceptional circumstances", based upon 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). Plaintiff offers nothing to show a likelihood of success. Nor does Plaintiff show any peculiar complexity of issues in this case. Most of the factors recited by Plaintiff, e.g. his in forma pauperis status, inconveniences of incarceration, limited legal resources, need to conduct research and investigation, need to respond to the
Document 1621 - Filed 05/28/2008 Page 1 of 2

Case 2:03-cv-02159-ROS-JRI

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summary judgment motion, etc. are not "exceptional" but common to pro se prisoner litigants. Moreover, such matters relate to the complexity of litigating his claims, not the complexity of the claims themselves. Most actions require development of further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the facts necessary to support the case. If all that was required to establish successfully the complexity of the relevant issues was a demonstration of the need for development of further facts, practically all cases would involve complex legal issues. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). As previously noted, Plaintiff's claims of due process and equal protection violations are common place. (See Order 10/29/07, #101, denying request for counsel.) The only exceptional factor cited by Plaintiff are his concerns about the sealed exhibits to the summary judgment motion. Those concerns were mooted by the Court's order requiring disclosure of the exhibits to Plaintiff, or filing of an amended motion without them. (See Order 5/8/08, #150.) Defendants have since filed an amended summary judgment motion (#159). IT IS THEREFORE ORDERED that Plaintiff's Motion to Appoint Counsel, filed April 22, 2008 (#141) is DENIED WITHOUT PREJUDICE.

DATED: May 27, 2008
S:\Drafts\OutBox\03-2159-141o Order 08 05 27 re RFC.wpd

_____________________________________ JAY R. IRWIN United States Magistrate Judge

Case 2:03-cv-02159-ROS-JRI

Document 1622 - Filed 05/28/2008 -

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