1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gerald Vaughn Gwen, No. CV 20-08225-PCT-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Scott Mascher, et al., 13 Defendants.
14 15 On August 27, 2020, Plaintiff Gerald Vaughn Gwen, who is confined in the Yavapai 16 County Detention Center, filed a pro se civil rights Complaint, a Motion for a Temporary 17 Restraining Order and Preliminary Injunction, a Declaration to TRO Application, and a 18 Motion for Expedited Processing. In a September 8, 2020 Order, the Court gave Plaintiff 19 thirty days to either pay the filing and administrative fees or file a complete Application to 20 Proceed In Forma Pauperis, dismissed the Complaint for failure to comply with Rule 3.4 21 of the Local Rules of Civil Procedure, denied without prejudice the Motion for a 22 Temporary Restraining Order and Preliminary Injunction, denied as moot the Motion for 23 Expedited Processing, and gave Plaintiff thirty days to file an amended complaint that 24 cured the deficiencies identified in the Order. On September 11, 2020, Plaintiff filed a 25 Motion for Leave to Amend Complaint, which the Court denied as moot in a September 26 18, 2020 Order because the Court had already granted Plaintiff leave to file an amended 27 complaint. 28 . . . . 1 On September 23, 2020, Plaintiff filed an Application to Proceed In Forma Pauperis, 2 a Response to Court’s Order Directing Resubmission, a Motion to Appoint Counsel, a First 3 Amended Complaint, a Declaration in Support of Plaintiff’s Motion for a Temporary 4 Restraining Order and Preliminary Injunction, and a Motion for Expedited Processing of 5 TRO and Extension. 6 In an October 9, 2020 Order, the Court granted the Application to Proceed and 7 dismissed the First Amended Complaint. The Court dismissed the First Amended 8 Complaint for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. The 9 Court noted that Plaintiff’s eight-count First Amended Complaint was primarily based on 10 assertions that Defendants were involved in a “conspiracy . . . to convict and deprive 11 Plaintiff of his liberty,” but Plaintiff was involved in three state court criminal cases and 12 the Court could not ascertain which of his allegations, which spanned a five-year 13 timeframe, related to a particular criminal case. As the Court explained, this is relevant 14 because Plaintiff was convicted and sentenced in one of the criminal cases and the claims 15 relating to that case were barred by Heck v. Humphrey, 512 U.S. 477 (1994), and Wilkinson 16 v. Dotson, 544 U.S. 74 (2005). In light of this, the Court concluded that it could not 17 meaningfully review Plaintiff’s First Amended Complaint, as required by 28 U.S.C. 18 § 1915A(a), and dismissed the First Amended Complaint with leave to file a second 19 amended complaint that omitted claims and allegations related to the case for which he was 20 convicted and sentenced and was limited to claims and allegations regarding the two 21 pending criminal cases. 22 In the Order, the Court also denied as moot Plaintiff’s Response to Court’s Order 23 and Motion for Expedited Processing and denied without prejudice his Motion to Appoint 24 Counsel and Motion for a Temporary Restraining Order and Preliminary Injunction. As to 25 the Motion for a Temporary Restraining Order and Preliminary Injunction, the Court noted 26 that Plaintiff must seek injunctive relief related to the merits of his underlying claims. The 27 Court concluded that denial without prejudice was appropriate because the Court had 28 dismissed the First Amended Complaint and, therefore, no claims were pending. 1 On October 21, 2020, Plaintiff filed a Motion for the Appointment of 2 Counsel (Doc. 19). On October 26, 2020, he filed a Motion for Reconsideration or 3 Amended Court Order Directing Resubmission of Complaint (Doc. 20). 4 I. Motion for the Appointment of Counsel 5 In his Motion for the Appointment of Counsel, Plaintiff claims he is unable to afford 6 counsel, has no legal training and a limited knowledge of the law, and has limited access 7 to a law library or other legal materials. Plaintiff also asserts that the case is factually and 8 legally complex and will require the discovery of documents and the deposition of 9 witnesses, the testimony in the case will be sharply conflicting, and he has no ability to 10 investigate the facts or locate and interview witnesses because he is serving a sentence in 11 the county jail. He also contends his case has merit and if it proceeds to trial, he “would 12 be unable to exercise his constitutional right to testify on his behalf.” 13 There is no constitutional right to the appointment of counsel in a civil case. See 14 Ivey v. Bd. of Regents, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, 15 the court may request an attorney to represent any person unable to afford one. 28 U.S.C. 16 § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when 17 “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 18 1991). A determination with respect to exceptional circumstances requires an evaluation 19 of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his 20 claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these 21 factors is dispositive and both must be viewed together before reaching a decision.” Id. 22 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 23 Having considered both elements, it does not appear at this time that exceptional 24 circumstances are present that would require the appointment of counsel in this case. 25 Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court will 26 deny without prejudice Plaintiff’s Motion for the Appointment of Counsel. 27 . . . . 28 . . . . 1 II. Motion for Reconsideration 2 In his Motion for Reconsideration, Plaintiff takes issues with multiple portions of 3 the October 9, 2020 Order. First, Plaintiff contends the Court’s requirement that he use a 4 court-approved form “creates prejudice, imposes an undue hardship and impedes 5 Plaintiff’s ability to present his claim(s)” because the form and its page limitation do not 6 adequately allow Plaintiff to present all relevant facts and claims against all Defendants 7 given the “sheer number” of claims and Defendants, as well as the complexity of the issues. 8 Second, Plaintiff claims the Order creates an undue hardship because it requires 9 Plaintiff to “state a claim inclusive of facts that are unknown to [Plaintiff] at the time of 10 fil[]ing the Complaint” and could not be obtained without extensive discovery.
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1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gerald Vaughn Gwen, No. CV 20-08225-PCT-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Scott Mascher, et al., 13 Defendants.
14 15 On August 27, 2020, Plaintiff Gerald Vaughn Gwen, who is confined in the Yavapai 16 County Detention Center, filed a pro se civil rights Complaint, a Motion for a Temporary 17 Restraining Order and Preliminary Injunction, a Declaration to TRO Application, and a 18 Motion for Expedited Processing. In a September 8, 2020 Order, the Court gave Plaintiff 19 thirty days to either pay the filing and administrative fees or file a complete Application to 20 Proceed In Forma Pauperis, dismissed the Complaint for failure to comply with Rule 3.4 21 of the Local Rules of Civil Procedure, denied without prejudice the Motion for a 22 Temporary Restraining Order and Preliminary Injunction, denied as moot the Motion for 23 Expedited Processing, and gave Plaintiff thirty days to file an amended complaint that 24 cured the deficiencies identified in the Order. On September 11, 2020, Plaintiff filed a 25 Motion for Leave to Amend Complaint, which the Court denied as moot in a September 26 18, 2020 Order because the Court had already granted Plaintiff leave to file an amended 27 complaint. 28 . . . . 1 On September 23, 2020, Plaintiff filed an Application to Proceed In Forma Pauperis, 2 a Response to Court’s Order Directing Resubmission, a Motion to Appoint Counsel, a First 3 Amended Complaint, a Declaration in Support of Plaintiff’s Motion for a Temporary 4 Restraining Order and Preliminary Injunction, and a Motion for Expedited Processing of 5 TRO and Extension. 6 In an October 9, 2020 Order, the Court granted the Application to Proceed and 7 dismissed the First Amended Complaint. The Court dismissed the First Amended 8 Complaint for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. The 9 Court noted that Plaintiff’s eight-count First Amended Complaint was primarily based on 10 assertions that Defendants were involved in a “conspiracy . . . to convict and deprive 11 Plaintiff of his liberty,” but Plaintiff was involved in three state court criminal cases and 12 the Court could not ascertain which of his allegations, which spanned a five-year 13 timeframe, related to a particular criminal case. As the Court explained, this is relevant 14 because Plaintiff was convicted and sentenced in one of the criminal cases and the claims 15 relating to that case were barred by Heck v. Humphrey, 512 U.S. 477 (1994), and Wilkinson 16 v. Dotson, 544 U.S. 74 (2005). In light of this, the Court concluded that it could not 17 meaningfully review Plaintiff’s First Amended Complaint, as required by 28 U.S.C. 18 § 1915A(a), and dismissed the First Amended Complaint with leave to file a second 19 amended complaint that omitted claims and allegations related to the case for which he was 20 convicted and sentenced and was limited to claims and allegations regarding the two 21 pending criminal cases. 22 In the Order, the Court also denied as moot Plaintiff’s Response to Court’s Order 23 and Motion for Expedited Processing and denied without prejudice his Motion to Appoint 24 Counsel and Motion for a Temporary Restraining Order and Preliminary Injunction. As to 25 the Motion for a Temporary Restraining Order and Preliminary Injunction, the Court noted 26 that Plaintiff must seek injunctive relief related to the merits of his underlying claims. The 27 Court concluded that denial without prejudice was appropriate because the Court had 28 dismissed the First Amended Complaint and, therefore, no claims were pending. 1 On October 21, 2020, Plaintiff filed a Motion for the Appointment of 2 Counsel (Doc. 19). On October 26, 2020, he filed a Motion for Reconsideration or 3 Amended Court Order Directing Resubmission of Complaint (Doc. 20). 4 I. Motion for the Appointment of Counsel 5 In his Motion for the Appointment of Counsel, Plaintiff claims he is unable to afford 6 counsel, has no legal training and a limited knowledge of the law, and has limited access 7 to a law library or other legal materials. Plaintiff also asserts that the case is factually and 8 legally complex and will require the discovery of documents and the deposition of 9 witnesses, the testimony in the case will be sharply conflicting, and he has no ability to 10 investigate the facts or locate and interview witnesses because he is serving a sentence in 11 the county jail. He also contends his case has merit and if it proceeds to trial, he “would 12 be unable to exercise his constitutional right to testify on his behalf.” 13 There is no constitutional right to the appointment of counsel in a civil case. See 14 Ivey v. Bd. of Regents, 673 F.2d 266, 269 (9th Cir. 1982). In proceedings in forma pauperis, 15 the court may request an attorney to represent any person unable to afford one. 28 U.S.C. 16 § 1915(e)(1). Appointment of counsel under 28 U.S.C. § 1915(e)(1) is required only when 17 “exceptional circumstances” are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 18 1991). A determination with respect to exceptional circumstances requires an evaluation 19 of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his 20 claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these 21 factors is dispositive and both must be viewed together before reaching a decision.” Id. 22 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 23 Having considered both elements, it does not appear at this time that exceptional 24 circumstances are present that would require the appointment of counsel in this case. 25 Plaintiff is in no different position than many pro se prisoner litigants. Thus, the Court will 26 deny without prejudice Plaintiff’s Motion for the Appointment of Counsel. 27 . . . . 28 . . . . 1 II. Motion for Reconsideration 2 In his Motion for Reconsideration, Plaintiff takes issues with multiple portions of 3 the October 9, 2020 Order. First, Plaintiff contends the Court’s requirement that he use a 4 court-approved form “creates prejudice, imposes an undue hardship and impedes 5 Plaintiff’s ability to present his claim(s)” because the form and its page limitation do not 6 adequately allow Plaintiff to present all relevant facts and claims against all Defendants 7 given the “sheer number” of claims and Defendants, as well as the complexity of the issues. 8 Second, Plaintiff claims the Order creates an undue hardship because it requires 9 Plaintiff to “state a claim inclusive of facts that are unknown to [Plaintiff] at the time of 10 fil[]ing the Complaint” and could not be obtained without extensive discovery. Third, 11 Plaintiff asserts that requiring him to only include claims relating to particular criminal 12 cases “is irrelevant because it is not by the specificity of a particular case that the [First 13 Amended] Complaint[’s] allegations arise, but rather arise from the conduct or acts by 14 named Defendants which constitutes a constitutional violation.” 15 Fourth, Plaintiff claims the Order “identifies only that the language used by the 16 Plaintiff in expressing his claim [sic], but does not state a deficiency in whether the 17 allegation is raised without facts supporting them.” He alleges the Court “does not state 18 its conclusions of law related to each issue presented” and, therefore, Plaintiff is “not made 19 aware of what he must correct specifically.” He contends his First Amended Complaint 20 meets “the legal threshold of § 1983” because he has identified the defendants, the 21 constitutional rights violated, “the facts in support of the allegation,” and his injury. Fifth, 22 Plaintiff claims the Court’s interpretation of Heck is “misplaced.” Finally, he contends that 23 the issue of whether a temporary restraining order should issue is “independent of 24 determining liability” under § 1983. 25 Motions for reconsideration should be granted only in rare circumstances. 26 Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). A motion for 27 reconsideration is appropriate where the district court “(1) is presented with newly 28 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 1 or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah 2 County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Such motions should not be 3 used for the purpose of asking a court “‘to rethink what the court had already thought 4 through – rightly or wrongly.’” Defenders of Wildlife, 909 F. Supp. at 1351 (quoting Above 5 the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Nor may 6 a motion for reconsideration repeat any argument previously made in support of or in 7 opposition to a motion. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 8 581, 586 (D. Ariz. 2003). Mere disagreement with a previous order is an insufficient basis 9 for reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 10 1988). 11 The Court has reviewed Plaintiff’s First Amended Complaint, his Declaration in 12 Support of Plaintiff’s Motion for a Temporary Restraining Order and Preliminary 13 Injunction, the October 9 Order, and Plaintiff’s Motion for Reconsideration. The Court 14 finds no basis to reconsider its decision. Thus, the Court will deny Plaintiff’s Motion for 15 Reconsideration. 16 The Court notes, however, that the IT IS ORDERED section of the October 9 Order 17 mistakenly states that the First Amended Complaint was dismissed for failure to state a 18 claim, rather than for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. 19 The Court will amend the Order accordingly. 20 III. Warnings 21 A. Release 22 If Plaintiff is released while this case remains pending, and the filing fee has not 23 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 24 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 25 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 26 result in dismissal of this action. 27 . . . . 28 . . . . 1 B. Address Changes 2 Plaintiff must file and serve a notice of a change of address in accordance with Rule 3 | 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this 5 | action. 6 C. Possible Dismissal 7 If Plaintiff fails to timely comply with every provision of the October 9, 2020 Order, 8 | the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 9} 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply 10 | with any order of the Court). 11 | ITIS ORDERED: 12 (1) Plaintiff's Motion for the Appointment of Counsel (Doc. 19) is denied 13 | without prejudice. 14 (2) Plaintiffs Motion for Reconsideration (Doc. 20) is denied. 15 (3) Paragraph 3 of the IT IS ORDERED section of the October 9, 2020 16 | Order (Doc. 17) is amended to reflect that the First Amended Complaint is dismissed “for 17 | failure to comply with Rule 8 of the Federal Rules of Civil Procedure” rather than “for 18 | failure to state a claim.” 19 Dated this 30th day of October, 2020. 20 21 A 22 James A. Teilborg 23 Senior United States District Judge 24 25 26 27 28