Opinion
No. CIV 06-2905-PHX-MHM (DKD).
August 31, 2007
ORDER
Pending before the Court are Defendants' Motion to Continue Deadlines (Doc. #25), Plaintiff's Motion for the Appointment of Legal Counsel or in the Alternative for an Order to Retain Typewriter (Doc. #27), and Plaintiff's Motion to Strike Defendants' Motion to Continue Deadlines (Doc. #28).
Appointment of Counsel
Plaintiff requests that the court appoint counsel due to his medical issues. There is no constitutional right to appointment of counsel in a civil case. See Johnson v. Dep't of Treasury, 939 F.2d 820, 824 (9th Cir. 1991). Appointment of counsel in a civil rights case is required only when exceptional circumstances are present. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). In determining whether to appoint counsel, the court should consider the likelihood of success on the merits, and the ability of plaintiff to articulate his claims in view of their complexity. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).
Plaintiff has not demonstrated a likelihood of success on the merits, nor has he shown that he is experiencing difficulty in litigating this case because of the complexity of the issues involved or because of his medical issues. Moreover, Plaintiff's numerous filings with the Court as well as the pending motion, indicate that Plaintiff is capable of presenting legal and factual arguments to the Court. After reviewing the file, the Court determines that this case does not present exceptional circumstances requiring the appointment of counsel. Accordingly, Plaintiff's request for the appointment of counsel will be denied.
Retain Typewriter
Plaintiff asserts in his motion that due to his medical issues, he should be allowed to retain the use of his typewriter (Doc. #27 at 2). Per ADOC Department Order 909, Implementation, Compliance Schedule, promulgated on October 11, 1999, prisoners incarcerated as of that date were given three years to bring their property into compliance with the new policy.
Inmates who are in custody prior to October 11, 1999, shall purchase or obtain property in compliance with the Department Order on its effective date. All inmate property obtained prior to the effective date of this Department Order shall be in compliance by October 11, 2002.
The policy allows inmates to send noncomplying items of personal property to persons outside the institution at the inmate's expense, to donate non-complying property to charity or the ADOC, or to direct that the items be destroyed. See D.O. 909.05 §§ 1.14.1, 1.14.2; D.O. 909.09 §§ 1.3, 1.4. It is not clear from the face of the policy exactly what disposition will be made of the non-complying property which has not been disposed of by the effective date of the Department Order. However, interpreting A.R.S. § 31-228(A), the Arizona Court of Appeals has found that ADOC is required to store and maintain pending the inmate's release any property items disallowed for immediate possession which were previously authorized. State v. Blum, 171 Ariz. 201, 829 P.2d 1247 (App. 1992); A.R.S. § 31-228(A).
"While an inmate's ownership of property is a protected property interest that may not be infringed upon without due process, there is a difference between the right to own property and the right to possess property while in prison." Searcy v. Simmons, 299 F.3d 1220, 1229 (10th Cir. 2002) (quoting Hattenv. White, 275 F.3d 1208, 1210 (10th Cir. 2002)). When property policies are revised to reduce the amount of property an inmate may have in his cell, and he is "allowed to send the property he could not possess in prison to a place of his choosing," the inmate is not "deprived of the property." Hatten, 275 F.3d at 1210; see also, Searcy, 299 F.3d at 1229 (where prison officials allow an inmate to dictate the disposition of property and the inmate refuses, due process is not violated if officials remove property from prisoner's cell and send it to inmate's relatives, even against the inmate's wishes).
Although Plaintiff does not expressly allege that the policy violates a constitutional right, he is presumably trying to allege a due process violation. However, while Plaintiff may be denied the immediate possession of non-compliant property, he cannot be divested of ownership because state law mandates that such property must be stored and maintained pending his release. Consequently, no deprivation has occurred, no protected property right has been implicated, and therefore, no process is due. Therefore, Plaintiff is unlikely to succeed on the merits of his claim and therefore his request to retain his typewriter will be denied.
Request Protective Segregation
Continue Deadlines
See Olim v. Wakinekona461 U.S. 238245Moody v. Daggett429 U.S. 7888
IT IS HEREBY ORDERED that Plaintiff's Motion for the Appointment of Legal Counsel (Doc. #27) is DENIED without prejudice.
IT IS FURTHER ORDERED denying Plaintiff's Motion for an Order to Retain Typewriter (Doc. #27).
IT IS FURTHER ORDERED denying Plaintiff's request for an Order from the Court directing that the ADOC place him in protective segregation.
IT IS FURTHER ORDERED denying Plaintiff's Motion to Strike Defendants' Motion to Continue Deadlines (Doc. #28).
IT IS FURTHER ORDERED granting Defendants' Motion to Continue Deadlines (Doc. #25) as follows:
1. That within 15 days of the entry of this Order, Plaintiff will provide counsel for Defendants with his executed Authorization for Release of Medical Information and Documentation in the form of the authorization annexed to this Order, and the identity of the neurologist whom he claims diagnosed him with Ramsey Hunt Syndrome. Plaintiff is also directed to authorize the release of this unidentified neurologist's records to Defendants if requested to do so by counsel for Defendants.
2. That once Defendants have received copies of the subject medical records, their counsel file a notice to that effect with the Court.
3. That the Scheduling Order be modified as follows:
• Last day to depose Plaintiff — thirty days after Defendants notify the Court that they have received the subject medical records pursuant to his authorization.
• Last day to file dispositive motions — thirty days after the deadline to conduct Plaintiff's deposition.
• Joint Pretrial Statement — thirty days after the deadline to file dispositive motions.
4. That if Plaintiff fails to comply with this Order, the Court may dismiss this action without further notice. OFFICE OF THE ATTORNEY GENERAL LIABILITY MANAGEMENT SECTION 177 N. CHURCH, SUITE 1105 TUCSON, ARIZONA 85701 AUTHORIZATION FOR RELEASE OF MEDICAL INFORMATION AND DOCUMENTATION TRENTON, Joseph (aka SLONE, Clinton J.) 04/13/1975 ADC 112499 SEND TO:
TO: Arizona Department of Corrections 1601 W. W. Jefferson Phoenix, AZ 85007 RE: Inmate Name: DOB: No.: # Case No.: USDC CV 06-2905-PHX-MHM (DKD) Paul E. Carter Assistant Attorney General Liability Management Section 177 N. Church, Suite 1105 Tucson, Arizona 85701 The undersigned patient authorizes the release of any and all documents and records contained in your files relating to reports, inpatient, outpatient, emergency room, personal physician care, treatment, and any and all other matters relating to patient's medical and/or psychological condition. These are to include, but are not limited to records of treatment for drug/alcohol/abuse and/or psychiatric illness, all diagnostic testing, MRI's, CT Scans, imaging, X-rays, prescriptions, correspondence, referrals, consultations, telephone contracts, handwritten or typed notes, letters and correspondence. The undersigned patient specifically authorizes the Assistant Attorney General and his/her assistants to contact the patient's Arizona Department of Corrections health care providers and authorizes the providers to disclose any and all information or opinions regarding the patient's medical and/or psychological condition and/or care to them.A photostatic copy of this authorization shall be considered as effective as the original. Further, this authorization will remain in effect until these matters have been concluded either by dismissal or entry of judgment in the above-referenced matters.
______________________________________ Patient's Signature SUBSCRIBED AND SWORN to before me by JOSEPH TRENTON this ______ day of _______________, 2007. ____________________________________ Notary Public My commission Expires: ___________________