Bishop-McKean v. Washington Department of Corrections

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RENEE BISHOP-MCKEAN, CASE NO. 3:20-CV-5416-JLR-DWC 11 Plaintiff, ORDER 12 v.

13 WASHINGTON DEPARTMENT OF CORRECTIONS, et al., 14 Defendant. 15

16 The District Court referred this 42 U.S.C. § 1983 action to United States Magistrate 17 Judge David W. Christel. Before the Court are several motions filed by Plaintiff: (1) First Motion 18 to Appoint Counsel (Dkt. 40); (2) Second Motion to Appoint Counsel (Dkt. 42); Motion to Serve 19 (Dkt. 43); and (4) Motion for Leave to File Amended Complaint (Dkt. 45). 20 1. First and Second Motions to Appoint Counsel (Dkt. 40, 42) 21 Plaintiff filed two Motions to Appoint Counsel. Dkt. 40, 42. No constitutional right to 22 appointed counsel exists in a § 1983 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 23 1981); see United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) 24 1 (“[a]ppointment of counsel under this section is discretionary, not mandatory”). However, in 2 “exceptional circumstances,” a district court may appoint counsel for indigent civil litigants 3 pursuant to 28 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. § 1915(d)). Rand v. Roland, 113F.3d 4 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). To decide

5 whether exceptional circumstances exist, the Court must evaluate both “the likelihood of success 6 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 7 complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 8 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead 9 facts showing he has an insufficient grasp of his case or the legal issues involved and an 10 inadequate ability to articulate the factual basis of his claims. Agyeman v. Corrections Corp. of 11 America, 390 F.3d 1101, 1103 (9th Cir. 2004). 12 In Plaintiff’s Motions, she states she is unable to afford counsel, imprisonment affects her 13 ability to litigate, the issues are complex, and she has limited access to the law library. Dkt. 40, 14 42. At this time, Plaintiff has not shown, nor does the Court find, this case involves complex

15 facts or law. Plaintiff has also not shown she is likely to succeed on the merits of his case or 16 shown an inability to articulate the factual basis of his claims in a fashion understandable to the 17 Court. The Court also notes “Plaintiff’s incarceration and limited access to legal materials are not 18 exceptional factors constituting exceptional circumstances that warrant the appointment of 19 counsel. Rather, they are the type of difficulties encountered by many pro se litigants.” Dancer v. 20 Jeske, 2009 WL 1110432, *1 (W.D. Wash. Apr. 24, 2009). 21 With respect to Plaintiff’s allegations she is physically disabled and unable to “log, file, 22 type, etc[,]” the record reflects Plaintiff has been able to capably litigate this case including filing 23 multiple coherent and typed pleadings. For example, in her Second Motion, Plaintiff filed a

24 1 three-page typed motion, a three-page typed declaration in support, a 7-page typed memorandum 2 of law in support of the motion, and various exhibits. See Dkt. 42; See also Dkt. 17 (Third 3 Amended Complaint); Velasquez v. Univ. Med. Ctr., 2008 WL 594721, at *1 (E.D. Cal. Feb. 15, 4 2008) (finding no exceptional circumstances warranting the appointment of counsel when the

5 plaintiff alleged mental and physical disabilities). 6 Therefore, the Court finds Plaintiff has failed to show the appointment of counsel is 7 appropriate at this time. Accordingly, Plaintiff’s Motions (Dkt. 40, 42) are denied without 8 prejudice. 9 2. Motion to Serve (Dkt. 43) 10 On March 10, 2021, Plaintiff filed the Motion to Serve requesting the Court to serve 11 Defendant Dunlap. Dkt. 43. On March 15, 2021, the Honorable James L. Robart, the District 12 Judge assigned to this case, granted Plaintiff’s Motion to Amend stating Plaintiff was granted 13 leave to amend for the purpose of removing several Defendants, including Defendant Dunlap. 14 Dkt. 44. Accordingly, Plaintiff’s Motion to Serve (Dkt. 43) is denied as moot as Plaintiff has

15 already sought and received an order allowing her to amend her Third Amended Complaint to 16 remove Defendant Dunlap. 17 3. Motion for Leave to File Amended Complaint (Dkt. 45) 18 On March 18, 2021, Plaintiff filed the Motion for Leave to File Amended Complaint 19 requesting the Court allow her to file an amended complaint to remove two defendants, the 20 Department of Corrections (“DOC”) and Washington Corrections Center for Women 21 (“WCCW”). Dkt. 45. As noted above, District Judge Robart granted Plaintiff leave to amend her 22 Third Amended Complaint, which is due on or before March 29, 2021. Thus, Plaintiff’s Motion 23

24 1 for Leave to File an Amended Complaint (Dkt. 45) is denied as moot. Plaintiff has not sought an 2 extension and does not find good cause for extending the March 29, 2021 deadline at this time. 3 4 Dated this 25th day of March, 2021.

5 6 A 7 David W. Christel United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24