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Oliver B. Mitchell

Name:

Address.

III

Afiltil[C

PO Box 2705

Long Beach, California 90801

Phone:

P3a; N/A

In Pro Per

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TINITED STATES DISTRICT COURT

CENTRAL DISTRTCT OF' CALIFORI{IA

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Oliver B. Mitchell

CASE NIIMBER:

iII

cv 13-6030-oDw(cw)

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Plaintiff To be supplied by

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of

The United States District Courl


V.

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the Clerk

U.S. Department of Veterans Affairs, et al"

REQUEST FOR APPOINTMENT OF COI-INSEI


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Defendant

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On September 26,2013, Plaintiff, in this case fiIed a "REQUEST FOR APPOINTMENT OF


COUNSEL" (docket no. 5, entered September 27,2013).

On October 1, 2013 the Court issued "ORDER GRANTING REQUEST FOR APPOINTMEI.{T

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OF COUNSEL" (docket no, 10, filed October 1,2014). In that order the Court stated "The Court

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construes this request as one under 28 U.S.C. 1915 (e)(1). But appointment of counsel under 28

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U.S.C. 1915 (e)(t) is limited to cases presenting exceptional circumstances. To decide whether

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these exceptional circumstances exist, a court must evaluate both "the likelihood of success on the

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rnerits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of

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the legal issues involved. Mitchell's complaint sets forth various causes of action and seeks redress

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for a myriad of wrongs, including discrimination and retaliation by Defendants against him

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employee, patient and whistleblower" Mitcheil also seems to pursue claims on behalf other

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veterans that have been harmed by the Defendants" Based on these allegations, the Court finds

cv-r26

(09/09)

as an

PLEADING PAGE FOR A COMPLAINT


$,

that Mitchell has some likelihood of success on the merits. But his likelihood is hampered by his

inability to clearly articulate his claims,

in this

assistance of counsel. Accordingly, Mitchell's Request

IT IS SO ORDERED."

case are

as exemplified by his

Complaint. Although the legal issues

not particularly complex, the Court finds that he would be better served with

for Appointment of Counsel is GRANTED.

On October 11,2013 the Court issued "ORDER VACATING APPOINTMENT OF

COUNISEL" (docket no" 11, filed October 11,2013). In that order the Court stated "Upon

reconsideration, this case appears to be a 194 case and will be transferred to the magistrate judge.

Therefore, the Court VACATE,S the Order Granting Request for Appointrnent of Counsei (ECF N

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10) and DENIES

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Counsel."

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WITHOUT PREJUDICE Plaintiff Oliver B, Mitchell's Request for Appointment

In reference to (docket no.

11, filed October

ll,2013) and in accordance with the provisions of

28 U.S.C. 636 (c), the Plaintiff nor ALL parties waived nor consented their right to proceed before

t4 IJ.S. Magistrate |udge who shall conduct any and all further proceedings in the
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trail) and order the entry of final judgment. Under General Order 194 the

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however, WITHOUT consent under provisions of 28 U"S.C. 636 (c).

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case (including the

case was transferred,

On December 10,2013 the Plaintifffiled a "REQUEST FOR RECONSIDERATION FOR


APPOINTMENT OF COUNSEL" (docket no. 13, filed December 10, 2013)"
On l)ecember 17,2013 the Court issued "CIVIL MINUTES-GENERAL" (docket no. 16, fiied

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December L7,2013). In that order the Court stated "Plaintiffs request for reconsideration for

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appointment of counsel is DENIED WITHOUT PREJUDICE at this time. There is no

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constitutional right to appointed counsel in civil rights cases. The court has no way to pay

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appointed counsel, and the court cannot compel an attorney to represent the

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exceptional circumstances, the court may request counsel to voluntarily provide representation. At

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this time the court does not find such exceptional circumstances in this case. If the court finds at

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later time that appointment of counsel is proper in this case the court may reopen the matter on its

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plaintiff. In

own motion."

On October 2,20L4 the Court issued "CIVIL MINUTES-GENERAL" (docket no.

cv-126 (09ta9)

35,

PLEADING PAGE FOR A COMPLAINT


(y
t-

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a

filed October I,2A14) for the following reasons citing:


Plaintiffs "Request to Amend Certification and Notice of Interested Parties" (docket no. 34, filed

April 2t,2014)

is DENIED for the following reasons:

Plaintiff attaches a twenty-one page list of persons he alleges have been injured by the actions of
in

Defendants and whom he wishes to add as Plaintiffs in this action. Plaintiff is appearing pro

this action and is not an attorney. A pro

non-attorney may appear pro se on his own behalf, he has no authority to appear as an attorney for

others than himself.

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se

se

plaintiff may not represent other parties. While a

The Plaintiff responds as such and RESPECTFULLY request APPOII.{TMENT OF COUNSEL


based on the following:

The |udges of the United States District Court(s) have approved Plan(s) for the Appointment of

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Counsel for Indigent Parties in Certain Civil Cases. The objective of this Plan is to facilitate the

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appointment of pro bono counsel for indigent pro

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has been authorized by a

se

parties in civil cases when such appointment

judicial officer. A principal objective of the PIan is to maxi mizeeach

i5 participating law firm's ability voluntarily to choose cases appropriate for that firm and to
judicial

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minimize the assignment of cases oniy by rotation among participating firms. Whenever

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officer determines that there is sufficient cause to exercise the discretionary power of the Court to

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appoint counsel for an unrepresented indigent party in a civil case, the judicial officer shall issue an

t9 order granting the indigent party's request for the pro bono appointment of an attorney. The order
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shail be transmitted forthwith to the Pro Bono Coordinator. The Pro Bono Coordinator will

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circulate to participating law firms a description of the case for which appointment of counsel has

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been approved.

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appointment for representation shall be limited solely to those matters at issue before

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the Court and may be limited to an issue or issues designated by the judicial officer. Appointed

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counsel shall represent the party in the action until final judgment is entered in the action, or the

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issue or issues designated by the judicial officer have been resolved, unless a judicial officer

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grants a motion to withdraw. Appointed counsel may apply for reimbursement of expenses from

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A firm may volunteer to accept appointment in the described case. Ary

the Court in accordance with the Court's Guidelines Governing the Reimbursement of Expenses

cY-126 (09/09)

PLEADING P.AGE FOR A COMPLAINT

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in Pro Bono Cases. Insofar as expenses are not reimbursed by the Court, it is generally anticipated

that appointed counsel shall bear the cost of any expenses. The acceptance of an appointment on

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pro bono basis shall be without prejudice to the assertion of interim or final claims for attorneys'

fees and costs under 42 U"S"C. S 1988 or otherwise as provided by

appointed counsel discovers that the party is able to pay for iegal services in whole or in part, the

attorney may bring that information to the attention of the judicial officer. Thereupon the judicial

officer may (1) approve the entryinto a fee agreement between the party and the attorney or (2)

relieve the attorney from the responsibilities of the order of appointment and permit the party to

retain another attorney or proceed pro

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law. If after appointment,

se.

28 U.S. Code S i915 - Proceedings in forma pauperis states "(a) (1) Subject to subsection (b), an

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court of the United States may authorize the commencement, prosecution or defense of any suit,

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action or proceeding, civil or criminal, or appeal therein, without prepayrnent of fees or securify

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therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner

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possesses

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state the nature of the action, defense or appeal and affiant's belief that the person is entitled to

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redress. (2) A prisoner seeking to bring a civil action or appeal a judgment in a civil action or

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proceeding without prepayment of fees or security therefor, in addition to filing the affidavit filed

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under paragraph (1), shall submit a certified copy of the trust fund account statement (or

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institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing

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the complaint or notice of appeal, obtained from the appropriate official of each prison at which th

2t prisoner
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that the person is unable to pay such fees or give security therefor. Such affidavit shall

is or was confined.

The Plaintiff in this matter is [not] a prisoner and is [not] subject to sua sponte under the PLRA
(Prison Litigation Reform Act).

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28 U,S. Code S 1915 - Proceedings in forma pauperis continues saying "(e) (1) The court may

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request an attorney to represent any person unable to afford counsel and (h) As used in this section

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a1
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the term "prisoner" means any person incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms
and conditions of paroie, probation, pretrial release, or diversionary program"

cv-r26

(09/09)

PLEADING PAGE FOR A CON,IPLAINT

uy-

Again, the Plaintiff in this matter is [not] a prisoner and is [not] subject to sua sponte review
under the PLRA (Prison Litigation Reform Act)"

Additionally, as obtained from "The Committee on The |udiciary Flouse of Representatives"


the Federal Rules of Civil Procedure (FCRP), Title IV, Parties, Rule 23, Class Actions states

"

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on
behalf of all members

onlyif: (1) the class is so numerous that joinder of all members is

impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses

of the representative parties are typical of the claims or defenses of the class; and (4) the
representative parties

will fairly and adequately protect the interests of the class. (c) Certification

Order; Notice To Class Members; (t) Certification Order. (a) Time to Issue. At an

earLy

practicable

time after a person sues or is sued as a class representative, the court must determine by order
whether to certifii the action as a class action. (b) Defining the Class; Appointing

C1ass Counsel.

An order that certifies a class action rnust define the class and the class claims, issues, or defenses,
and must appoint ciass counsel under Rule 23(S).Rule

23(il (1) Appointing

Class Counsel states

"Unless a statute provides otherwise, a court that certifies a class MUST appoint class counsel."

Despite the obvious conflict, analyses and approach between the District and Magistrate
)udge, the Plaintiff respectfully request that the Court follow both the letter and spirit of the law.

On September 23,2014 the United States Office of Special Counsel recommended an


investigation into aiiegations of violations of law, rule, or regulation, gross mismanagement, an
abuse of authority, and a substantial and specific danger to public health and safety,

with a report to

the President. Based on the OSC's findings, the Plaintiff finds that an "exceptional circumstance" is

present. Additionally, docket no, 10 expressly states "Mitchell also seems to pursue claims on behalf

of other veterans that have been harmed by the Defendants."


As such and based on the FOREGOING the Plaintiff RESPECTFULLY request reconsideration

in appointment of counsel in accordance with the law.


Date: December 11, 2014

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oliverlifl4itchell III
Plaintiff in Pro Per

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