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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San 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

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

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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,

// // // // // // // // // // // // MOTION PAGE 2 OF 2

James Alan Bush Plaintiff in pro per

09-cv-01024 (PR) RS

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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San 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 DECLARATION OF PLAINTIFF IN SUPPORT OF MOTION FOR APPOINTMENT OF COUNSEL

Judge Richard Seeborg

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

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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 DECLARATION PAGE 2 OF 6 09-CV-01024 (PR) RS

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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. 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. DECLARATION PAGE 3 OF 6 09-CV-01024 (PR) RS

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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 DECLARATION PAGE 4 OF 6 09-CV-01024 (PR) RS

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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 DECLARATION PAGE 5 OF 6 09-CV-01024 (PR) RS

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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.

James Alan Bush Plaintiff in pro per

DECLARATION

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09-CV-01024 (PR) RS

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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San 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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR APPOINTMENT OF COUNSEL

Judge Richard Seeborg

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

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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 MEMORANDUM PAGE 2 OF 5 09-CV-01024 (PR) RS

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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 MEMORANDUM PAGE 3 OF 5 09-CV-01024 (PR) RS

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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 MEMORANDUM PAGE 4 OF 5 09-CV-01024 (PR) RS

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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,

James Alan Bush Plaintiff in pro per

MEMORANDUM

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09-CV-01024 (PR) RS

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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San 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 EXHIBIT A

Judge Richard Seeborg

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

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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San 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 EXHIBIT B

Judge Richard Seeborg

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

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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San 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 EXHIBIT C

Judge Richard Seeborg

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

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James Alan Bush (DWF967-08086698) 885 North San Pedro Avenue San 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 EXHIBIT D

Judge Richard Seeborg

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. // EXHIBIT D PAGE 1 OF 3 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 2 OF 3 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 3 OF 3 09-cv-01024 (PR) RS

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