Motion for Appointment of Counsel

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

MOTION PAGE 1 OF 2 09-cv-01024 (PR) RS

TO THE HONORABLE RICHARD SEEBORG, JUDGE, UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF CALIFORNIA:

COMES NOW, James Alan Bush, the plaintiff in the above-captioned matter,

and hereby applies for the appointment of counsel, pursuant to Title 28

U.S.C.A. § 1915(d), on the grounds that the plaintiff is unable to employ

counsel due to his indigency and incarceration, and that there exists

exceptional circumstances justifying such an appointment.

Beyond evaluating the merits of this case, the plaintiff respectfully

requests the Court to consider additional factors when ruling on this

James Alan Bush (DWF967-08086698)885 North San Pedro AvenueSan Jose, California 95110

Plaintiff in pro per

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

James Alan Bush,

Plaintiff,

v.

Officer Miguel Flores (#3881),

Defendant.

Case No. 09-cv-01024 (PR) RS

MOTION FOR APPOINTMENT OF COUNSEL

[28 U.S.C.A. § 1915(d)]

Judge Richard Seeborg

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

MOTION PAGE 2 OF 2 09-cv-01024 (PR) RS

motion, such asw the complexity of the case and the ability of the

plaintiff to prepare and present it.

This motion is based on the attached declaration and its exhibits, on

the memorandum of points and authorities served and filed herewith, and on

the papers and records already on file in this case, and, in particular:

1. Order Granting Application to Proceed In Forma Pauperis (“IFP

Order”);

2. Order Directing Defendants to File Dispositive Motion or Notice

Regarding Such Motion (“DM Order”); and,

3. Order Granting In Part and Denying In Part Defendants’ Motion for

Summary Judgment (“MSJ Order”).

Dated: April 4th, 2011

Respectfully submitted,

James Alan BushPlaintiff in pro per

//

//

//

//

//

//

//

//

//

//

//

//

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

DECLARATION PAGE 1 OF 6 09-CV-01024 (PR) RS

I, James Alan Bush, hereby declare as follows:

1. I have personal knowledge of all matters stated herein and could

testify truthfully thereto if so called.

2. I am the plaintiff in the above-captioned matter, which is a civil

rights action brought pursuant to 42 U.S.C.A. § 1983 for the use of

excessive force during the course of an arrest.

3. I am indigent and am unable to pay for any legal services, in that I

have no monthly income and no assets.

4. I am unable to employ counsel on a contingent fee basis, even though






James Alan Bush,

Plaintiff,

v.


Defendant.


DECLARATION OF PLAINTIFF IN SUPPORT OF MOTION FOR APPOINTMENT OF COUNSEL


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


I have contacted several attorneys by phone and/or letter [see Exhibit

“A”]. In every case, the attorney with whom I made contact was either

unavailable due to an extensive caseload or was admittedly unskilled in

the litigation of this type of claim, and therefore refused to provide

legal services.

5. Accordingly, I hereby request that the Court appoint counsel on my

behalf, pursuant to 28 U.S.C.A. § 1915(d), which is justified not only

by the reasons hereinafter described, but by the fact that I am being

held as a pretrial detainee and am immobile, and this case pertains

to an incident that occurred outside of the facility in which I am

detained. By contrast, the defendant, who is representedf by a highly

reputable counsel, is faced with no such restraints. The truth will

more likely be exposed if both sides were represented by counsel.

6. The Court has already determined that I have stated a colorable claim

for relief, in that:

a. In granting the Application to Proceed In Forma Pauperis, the Court

stated that it “is satisfied that ... the instant action is not

frivolous or without merit” (IFP Order at 1);

b. Upon conducting a preliminary screening of the complaint, as

required per Title 28 U.S.C.A. § 1915A(a), the Court stated that this

claim “is cognizable under § 1983” (DM Order at 2]; and,

c. In denying Defendant Flores’ Motion for Summary Judgment, the Court

stated that, upon review of the papers and records on file in this

action, “the plaintiff has shown that there are triable issues of

material fact” {MSJ Order at 6), and, that based on the accounts of

the incident provided by both the plaintiff and the defendant, the

conduct of the defendant, as alleged by the plaintiff, violated a

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


constitutional right, and that this right was clearly established

at the time of the incident, and that it was reasonable for the

defendant to believe that his conduct was unlawful (Id. at 7).

In addition, the Superior Court of California dismissed the case

brought by the defendant against me at a hearing on a motion that

sought to exlude certain evidence obtained by physical coercion (see

Exhibit “B”); moreover, the Santa Clara County District Attorney

dismissed the charge of resisting arrest, also brought by the

defendant, because, upon reviewing the case, no factual basis for this

charge was found.

7. This case is a complex one, in that the credibility of the defendant

is a substantial issue. Evidence will be proffered to impeach the

honesty and character of the defendant, and, in particular, evidence

that shows the defendant falsified the police report, made a false

arrest, and gave false and contradictory testimony between this case

and a related criminal matter, all of which would be relevant and

admissible to establish the defendant’s character for honesty and

truthfulness. Counsel will be required in order to interview witnesses

and obtain other evidence of the dishonest character of the defendant

to show that the defendant acted in conformity with that character at

the time of the incident. Furthermore, the expertise of experienced

counsel will be needed in order to use this evidence to impeach any

testimony of the defendant at trial with acts showing a morally lax

character and hence a readiness to lie; specifically, expertise in the

presentation of this type of evidence, in shaping the examination of

witnesses, and in the techniques of cross-examination necessary in a

case involving contradictory testimony.

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


8. The restraints due to my confinement prevent me from locating and

interviewing witnesses who have a connection with the case and who

have information relevant to the events and circumstances in question.

The testimony of two witnesses in particular will be material to the

issue of whether my arrest was made on lawful grounds, or, rather,

was a pretext to a premeditated act of battery on the part of the

defendant, as was indicated in a recorded statement made by these

witnesses prior to the incident. This recording, which was filed

before the assault occurred in the United States District Court for

the Northern District of California, San Jose Division, under case

number C 08-01354 (RS) JF, will be used to refresh the recollection of

these witnesses to the statements made by them, and, in particular,

statements in which they demonstrated the foreknowledge given them

by other police officers of the impending assault by the defendant

prior to its occurrence. The nature of this evidence, i.e., the

recording and the testimony of these witnesses, is such that the facts

and circumstances preceding the incident will be more accurately

ascertained if I am represented by counsel.

9. I am unable to investigate the facts crucial to this case because of

the inaccessibility of outside medical specialists who are needed to

develop evidence concerning the diagnosis and causation of my injuries,

and, as a consequence, I cannot present this case properly. The

preliminary evidence in this case indicates that an issue of fact will

arise requiring expert assistance that is likely to be a significant

factor at trial, and testimony will be presenteed in the medical field

of orthopedics (see Exhibit “C”); specifically, there exists a genuine

issue of material fact as to whether the injuries I sustained resulted

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


from a use of force applied by the defendant during the course of the

arrest that was excessive. In order to demonstrate that I sustained

my injuries as alleged, testimony by a medical expert in the field of

orthopedics is required. This particular evidence would consist of

complex and probably contradictory testimony from medical experts,

witnesses, and the defendant, which would be too complex for a litigant

who is unskilled in the rules of evidence, and who otherwise lacks the

means to adequately investigate, prepare, and present his case.

10. A psychiatric examination that was conducted, in part, in relation

to the incident, indicates the existence of physical and mental

impairments that would effectively hamper, or even preclude, the

prosecution of this claim.

In a letter to my former defense counsel in a pending criminal

matter (see Exhibit “D”), Dr. Harvey E. Dondershine, M.D., J.D., stated

that “[the plaintiff] has health problems” and that “he feels sick and

has lost weight.” He further wrote that “[the plaintiff] has Hepatitis

B with high enzymes, AIDS with a low T-cell count and high viral load,

and low serum testosterone.” He also advised the defense counsel to

“keep in mind that systemic illness, particularly hepatitis and AIDS,

can cause of [sic] depression.” He then stated that “[i]t is also true

that ... serious illness can impact anyone’s emotional stability.”

In his analysis of the emotional impact of the incident,

Dr. Dondershine observed the following:

a. that the threats made by police “were increasingly upsetting to

[the plaintiff], with a building sense of urgency in the months

immediately preceding the [assault]”;

b. that “[the plaintiff] expressed genuine emotion,” in that “he began

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


to cry,” when describing to him “how traumatizing it was”; and,

c. that “[the plaintiff’s] anxiety progressively heightened beginning

the month after the crime.”

From these observations, Dr. Dondershine concluded that “[t]his

sequence is typical for an emerging stress disorder.”

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct. Executed this 4th day

of April, 2011, in San Jose, California.


//

//

//

//

//

//

//

//

//

//

//

//

//

//

//

//

//

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

MEMORANDUM PAGE 1 OF 5 09-CV-01024 (PR) RS

In support of the attached Motion for Appointment of Counsel, Plaintiff

proffers the following statements of law and argument:

I. CASE LAW ESTABLISHES KEY FACTORS TO BE CONSIDERED WHEN DETERMINING

WHETHER TO APPOINT COUNSEL UNDER 28 U.S.C.A. § 1915(d)

The courts considering appointment of counsel for civil rights

plaintiffs under 28 U.S.C.A. § 1915(d) have generally agreed that such

appointments are only appropriate under “exceptional circumstances.”

While most courts have treated this “test” as a simple factual

determinatiom which will vary from case to case, some courts have






James Alan Bush,

Plaintiff,

v.


Defendant.


MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPOINTMENT OF COUNSEL


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


expressly elaborate on the factors which a trial court should consider

when determining whether to appoint counsel under 28 U.S.C.A. § 1915(d).

For example, in Ulmer v. Chancellor (1982, CA5 Miss) 691 F.2d

209, the court indicated that, in the exercise of its discretion, a

determination of whether the case was an exceptional one in which the

appointment of counsel was appropriate should be based on the following

considerations:

a. the type and complexity of the case;

b. whether the plaintiff was capable of adequately presenting his

case;

c. whether the plaintiff was in a position to investigate the case

adequately; and,

d. whether the evidence would consist in large part of conflicting

testimony which would require skill in the presentation of

evidence and in cross-examination.

A court should also consider, the court continued, whether the

appointment of counsel would be a service to the plaintiff, and

perhaps the court and defendant as well, by sharpening the issues in

the case, shaping the examination of witnesses, and thus shortening

the trial and assisting in a just determination.

The court in McKeever v. Israel (1982, CA7 Wis) 689 F.2de 1315,

indicated that, in determining whether counsel should be appointed

under 28 U.S.C.A. § 1915(d), the threshold issue is the merit of the

claim and that, assuming this threshold is met, a court should

consider whether the party is able to adequately investigate the

factual issues in a dispute, whether the only evidence that will

be introduced is in the form of conflicting testimony, and, whether

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


the indigent party is capable of presenting his own case. The court

stated further that the appointment of counsel is often appropriate

where the indigent is unable to conduct a suitable investigation and

the examination and cross-examination by trained counsel should aid

the court in determining the truth where conflicting testimony is

present. Counsel should also be appointed where the indigent lacks the

requisite capacity to present his own case, the court stated. Finally,

the court noted that these factors are by no means exclusive, and that

in some cases, other elements may be significant or even controlling,

such as the existence of physical and/or mental impairments [see, for

example, McCarthy v. Weinberg (1985, CA10 Kan) 753 F.2d 836; Lockert v.

Faulkner (1983, ND Ind) 574 F.Supp 606].

The United States Court of Appeals for the Third Circuit also has

stated that appointment of counsel for an indigent litigant customarily

should be made only “upon showing of special circumstances indicating

the likelihood of substantial prejudice to him resulting, for example,

from his probable inability without such assistance to present

the facts and legal issues to the court in a complex but arguably

meritorious case.” [Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984)].

But, no part of the discussion in Smith-Bey of circumstances warranting

appointment of counsel should be interpreted to mean that “appointment

is permissible only in exceptional circumstances and that, in the

absence of such circumstances, the court has no discretion to appoint

counsel.” [Tabron v. Grace, 6 F.3d 155 (3d Cir. 1993)].

When considering what factors do properly guide a decision on

appointment of counsel, the court noted first that appointment of

counsel should not be made unless “the plaintiff’s claim has arguable

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


merit in fact and law.” [Id.]. If that threshold requirement is

satisfied, three factors should be considered:

a. ability to pay for counsel;

b. ability to present his case pro se;

c. whether the legal issues are complex;

d. whether “factual investigation will be required and the ability

of the indigent plaintiff to pursue such investigation” [Id. at

156];

e. whether “a case is likely to turn on credibility determinations”

[Id.]; and,

f. whether expert witness testimony will be needed [Id. at 155-56].

The Third Circuit also commented generally:

If it appears that an indigent plaintiff with a claim of arguable

merit is incapable of presenting his case, serious consideration

should be given to appointing counsel ... and if such a

plaintiff’s claim is truly substantial, counsel should ordinarily

be appointed.

II. WHEN DETERMINING WHETHER TO APPOINT COUNSEL UNDER 28 U.S.C.A. § 1915(d),

THE COURT SHOULD PRESUME THE INABILITY OF THE PLAINTIFF TO EMPLOY

COUNSEL

In the majority of cases where civil rights plaintiffs have sought

counsel under 28 U.S.C.A. § 1915(d), the plaintiff’s inability to retain

counsel independently is clear or presumed, and in ever case where

counsel in unavailable. [See, for example, Branch v. Cole (1982, CA5

Miss) 686 F.2d 264].

Apparently without disputing that counsel should not be appointed

under 28 U.S.C.A. § 1915(d) when a plaintiff can independently retain

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


an attorney, the court in Ulmer v. Chancellor (1982, CA5 Miss) 691 F.2d

209, was nevertheless unwilling to rule that a prisoner should be able

to retain counsel for a contingency fee in a suit for substantial

damages. While the damages sought were substantial, the court stated,

it was not obvious that an attorney could readily be found to handle

the case for an incarcerated person.

In Buton v. Englemyre (1981, ED Tenn) 557 Supp. 1, the court

determined that the appointment of counsel under 28 U.S.C.A. § 1915(d)

was appropriate in a prisoner’s civil rights action where the prisoner

stated a cause of action under 42 U.S.C.A. § 1983, and where the

prisoner had sought unsuccessfully to engage the services of three

different attorneys.

Respectfully submitted,


//

//

//

//

//

//

//

//

//

//

//

//

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

EXHIBIT A PAGE 1 OF 2 09-cv-01024 (PR) RS

Plaintiff hereby submits Exhibit “A”, in support of his Motion for

Appointment of Counsel, which consists of the only response the

plaintiff received from an attorney in regards to his request for legal

representation on a contingency fee basis.

Mr. Anthony Boskovich is the only attorney who asked to review

the complaint. Regrettably, the aforementioned attorney declined to

represent the plaintiff for unspecified reasons, even though the plaintiff

subsequently defeated a Motion for Summary Judgment.

//






James Alan Bush,

Plaintiff,

v.


Defendant.


EXHIBIT A


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

EXHIBIT A PAGE 2 OF 2 09-cv-01024 (PR) RS

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

EXHIBIT B PAGE 1 OF 2 09-cv-01024 (PR) RS

Plaintiff hereby submits Exhibit “B”, in support of his Motion for

Appointment of Counsel, which consists of the court minute order that

shows the dismissal of the case brought by the defendant against the

plaintiff by the Superior Court of California, County of Santa Clara.

The case was dismissed on a motion that sought to exclude from trial

the evidence the defendant obtained by physical coercion.

Upon reviewing the preliminary evidence, the court dismissed the case

“in the interests of justice.”

//






James Alan Bush,

Plaintiff,

v.


Defendant.


EXHIBIT B


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

EXHIBIT B PAGE 2 OF 2 09-cv-01024 (PR) RS

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

EXHIBIT C PAGE 1 OF 2 09-cv-01024 (PR) RS

Plaintiff hereby submits Exhibit “C”, in support of his Motion for

Appointment of Counsel, which consists of an X-ray film taken of the

plaintiff’s shoulder that he alleges was injured by Defendant Flores during

the course of his arrest. Plaintiff also alleges that the aforementioned

defendant also shattered and broke the plaintiff’s rib (not shown).

Expert testimony in the field of orthopedics will be required in order

to prove that the injuries were sustained as alleged, and caused by

excessive force.

//






James Alan Bush,

Plaintiff,

v.


Defendant.


EXHIBIT C


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

EXHIBIT C PAGE 2 OF 2 09-cv-01024 (PR) RS

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

EXHIBIT D PAGE 1 OF 3 09-cv-01024 (PR) RS

Plaintiff hereby submits Exhibit “D”, in support of his Motion for

Appointment of Counsel, which consists of a letter to the plaintiff’s

former defense counsel in a pending criminal matter that describes the

plaintiff’s physical and mental impairments caused by systemic illness

and, in part, due to the incident described in the plaintiff’s complaint.

Dr. Harvey E. Dondershine, M.D., J.D., stated that the plaintiff suffers

from complications due to AIDS and hepatitis, and also from an emerging

stress disorder.

//






James Alan Bush,

Plaintiff,

v.


Defendant.


EXHIBIT D


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


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


Documents

Motion for Appointment of Counsel