United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge.
the Court are Plaintiff's renewed Motion for Appointment
of Counsel (Dkt. 53), his Motion for Summary Judgment (Dkt.
55), and his Motion to Appear by Phone at the January 29,
2018 pretrial conference (Dkt. 57). Defendants, for their
part, have file a Motion to Strike Plaintiff's Late Filed
Motion for Summary Judgment (Dkt. 59).
reasons explained below, the Court will grant defendants'
motion to strike and deny plaintiff's late-filed motion
for summary judgment. The Court will also grant
plaintiff's motion for appointment of counsel and will
deem plaintiff's motion to appear by telephone moot.
August 2015, Plaintiff Blake Edmond Cody sued six Boise City
Police Department Officers, claiming that they used excessive
force against him during a traffic stop. In September 2017,
this Court granted summary judgment in favor of two of the
officers, but denied the remaining defendants' motion for
summary judgment. Trial is scheduled to begin on February 12,
2018. A telephonic pretrial conference is scheduled for
January 29, 2018.
Plaintiff's Motion for Summary Judgment
Court will begin with plaintiff's motion for summary
judgment. This Court has already denied plaintiff's first
motion for summary judgment, which was late-filed in any
event. See Sept. 27, 2017 Memorandum Decision &
Order, Dkt. 51, at 24. Inexplicably, plaintiff has again
filed a substantially identical motion. The Court will
summarily deny this motion and grant the defendants'
motion to strike.
Plaintiff's Motion for Appointment of Counsel
has also filed another request for appointment of counsel.
civil cases, counsel should be appointed only in
“exceptional circumstances.” Id. To
determine whether exceptional circumstances exist, the court
should evaluate two factors: (1) the likelihood of success on
the merits of the case, and (2) the ability of the plaintiff
to articulate the claims pro se in light of the complexity of
legal issues involved. Terrell v. Brewer, 935 F.2d
1015, 1017 (9th Cir. 1991). Neither factor is dispositive,
and both must be evaluated together. Id.
Court concludes that Plaintiff has demonstrated some
likelihood of success in this litigation and that the
complexity and novelty of the issues - particularly as those
issues will be presented in the context of a trial, as
opposed to in written briefing - support the appointment of
pro bono counsel. The Court has previously denied
plaintiff's similar motions, but litigating an
excessive-force claim at trial is a more difficult, complex
task than litigating such a claim on paper. Accordingly, the
Court will grant the motion, but plaintiff should be aware
that the federal court has no authority to require
attorneys to represent indigent litigants in civil cases
under 28 U.S.C. § 1915(d). See also Mallard v. U.S.
Dist. Court for Southern Dist. of Iowa, 490 U.S. 296,
298 (1989). Rather, when a Court “appoints” an
attorney, it can only do so if the attorney voluntarily
accepts the assignment. Id. The Court has no funds
to pay for attorney's fees in civil matters, such as this
one. Therefore, it is often difficult to find attorneys
willing to work on a case without payment. For these reasons,
plaintiff should attempt to procure his own counsel on a
contingency or other basis, if at all possible. If court
staff is unable to locate pro bono counsel for Plaintiff,
then he will have to proceed pro se.
Plaintiffs' Motion to ...