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Conner v. Kirkegard

United States District Court, D. Montana, Helena Division

January 25, 2017

ANDREW DAVID CONNER, Plaintiff,
v.
WARDEN LEROY KIRKEGARD, et al., Defendants.

          ORDER

          John Johnston, United States Magistrate Judge

         Plaintiff Andrew Conner, an inmate proceeding in forma pauperis and without counsel, filed a Motion for the Appointment of Counsel (Doc. 48) and an Objection to the Court's Denial of his Motion for Examination (Doc. 49), which the Court has construed as a motion for reconsideration.

         I. MOTION FOR APPOINTMENT OF COUNSEL

         This is Mr. Conner's second motion to appoint counsel. See (Doc. 26.) As set forth in the Court's Order denying the first motion, no one, including incarcerated prisoners, has a constitutional right to be represented by appointed counsel when they file a civil lawsuit under 42 U.S.C. § 1983. (Doc. 35 (citing Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997)), withdrawn on other grounds, 154 F.3d 952, 962 (9th Cir. 1998). A judge may only request counsel for an indigent plaintiff under “exceptional circumstances.” 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

A finding of exceptional circumstances requires an evaluation of both ‘the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these factors is dispositive and both must be viewed together before reaching a decision.

Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (citations omitted). Mr. Conner still does not meet this criteria.

         Citing an Eighth Circuit case, Mr. Conner argues that the Court should consider the factual complexity of the case, his ability to investigate, the existence of conflicting testimony, and Mr. Conner's ability to present his case in light of the complexity of the legal issues. (Doc. 48 at 4 (citing Abdullah v. Gunter, 949 F.2d 1032 at 1035 (9th Cir. 1991).).) As set forth above, however, in the Ninth Circuit, the Court must consider Mr. Conner's likelihood of success on the merits and his ability to articulate his claims in light of the complexity of the legal issues. Terrell, 935 F.2d at 1017.

         Mr. Conner has still not demonstrated a likelihood of success on the merits or his inability to articulate his claims pro se. His filings are articulate and demonstrate an understanding of the issues involved. The Court will not appoint counsel at this point in the litigation.

         II. OBJECTIONS TO DENIAL OF EXAMINATION

         Mr. Conner has filed an objection to the Court's January 10, 2017 Order denying his Motion for Order for an Examination. (Doc. 49.) The Court construes this filing as a motion for reconsideration and as such it will be denied.

         The Local Rules for this Court require that a party must first move for leave to file a motion for reconsideration before filing a motion for reconsideration. A motion for leave to file a motion for reconsideration must specifically meet at least one of the following two criteria:

(1) (A) the facts or applicable law are materially different from the facts or applicable law that the parties presented to the Court before entry of the order for which reconsideration is sought, and
(B) despite the exercise of reasonable diligence, the party applying for reconsideration did not know such fact or law ...

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