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., Defendant(s) CV-03-2159-PHX-ROS (JI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Under consideration is Plaintiff's Motion to Appoint Counsel, filed October 11, 2007 (#96). Plaintiff seeks counsel on the basis of his pro se and in forma pauperis status, the limited research materials available to him in prison, and the potential that counsel would find it easier to garner counsel on other inmates to support Plaintiff's claims. Defendants have responded (#100), asserting that Plaintiff has failed to show "exceptional circumstances", but taking no position on the motion. There is no constitutional right for an indigent to have appointed counsel in a civil case. Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). It is established "beyond doubt" that prisoners have a constitutional right of access to the courts, Bounds v. Smith, 430 U.S. 817, 821 (1977), that is "adequate, effective, and meaningful," id. at 822. That right of access may, in some exceptional circumstances, require appointment of counsel. However, the Ninth Circuit has held that the constitutional right of access to the courts requires that the state provide assistance only through the pleading stage, including preparation of a reply to an answer, if the court orders a reply. Cornett v. Donovan, 51 F.3d 894, 899 (1995). The pleadings in this case are complete. Accordingly, Plaintiff's right of access is not at issue, and therefore cannot justify appointment of counsel. Further, 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
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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 beyond his assurance that his claims are meritorious. Nor does he show any peculiar complexity of issues in this case. The factors recited by Plaintiff, e.g. pro se status, lack of research materials, etc., are not "exceptional" but common to pro se prisoner litigants appearing before this Court. Moreover, such matters relate to the complexity of litigating his claims, not the complexity of the claims themselves. His claims of due process and equal protection violations are common place, as are the Defendants' defenses of immunity, failure to exhaust, and denial of the allegations on which Plaintiff's claims are based. IT IS THEREFORE ORDERED that Plaintiff's Motion to Appoint Counsel, filed October 11, 2007 (#96) is DENIED WITHOUT PREJUDICE.

DATED: October 26, 2007
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_____________________________________ JAY R. IRWIN United States Magistrate Judge

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Case 2:03-cv-02159-ROS-JRI Document 1012 - Filed 10/29/2007 Page 2 of 2