Chang v. Vanderwielen

Opinion

WESTERN DISTRICT OF WASHINGTON VICKI CHANG, Plaintiff, Case No. C22-0013-SKV v. ORDER RE: MOTIONS TO APPOINT COUNSEL AND FOR PROTECTIVE ANDREW VANDERWIELEN, et al., ORDER Defendants.

Plaintiff proceeds pro se in this civil rights action. This matter comes before the Court on Plaintiff’s Application for Court-Appointed Counsel, Dkt. 82, and a Motion for Protective Order filed by Defendants Washington State Patrol Troopers Andrew Vanderwielen and Edward Collins (“WSP Defendants”), Dkt. 85. The Court, having considered the motions, any documents filed in support or opposition, and the remainder of the record, herein finds and ORDERS as follows: (1) Plaintiff seeks the appointment of counsel. Dkt. 82. This is Plaintiff’s third such request. See Dkts. 4 & 33 (Order denying first and second motions). In support of the current request, Plaintiff states that she has contacted over five attorneys over the last three years and has discussed her claims with various other individuals and officials, some of whom have told her that her claims have merit. Dkt. 82 at 2. Under 28 U.S.C. § 1915(e)(1), “[t]he Court may request an attorney to represent any person unable to afford counsel.” However, there is no right to appointment of counsel in a civil

case. See United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). Moreover, the Court may appoint counsel only in exceptional circumstances. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). “A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. These factors must be viewed together before reaching a decision on a request for counsel under § 1915(e)(1). Id. The Court again finds no basis for granting Plaintiff’s request. First, Plaintiff has not demonstrated an inability to afford counsel. See, e.g., Dkt. 41 at 2 (noting Plaintiff paid the filing fee in this matter and denying her application to proceed in forma pauperis due to her failure to provide complete and detailed financial information to allow for a determination of her

eligibility). Second, and as previously found by the Court on two occasions, Plaintiff fails to demonstrate either a likelihood of success on the merits or the inability to articulate her claims pro se. Accordingly, Plaintiff’s third Motion to Appoint Counsel, Dkt. 82, is DENIED. (2) WSP Defendants filed a motion for a protective order staying discovery limited at them pending a decision on their motion to dismiss. Dkt. 85. The Court recently granted in part and denied in part WSP Defendants’ motion to dismiss. See Dkt. 104. Given that ruling, the motion for a stay of discovery is in large part moot. However, the Court denied dismissal in relation to Plaintiff’s Fourth Amendment excessive force claim against Trooper Vanderwielen. The Court does not, as such, find good cause for entry of a protective order under Federal Rule of Civil Procedure 26(c). Accordingly, WSP Defendants’ Motion for a Protective Order, Dkt. 85, is DENIED. The Court advises Plaintiff that, because her other claims against WSP Defendants have been dismissed, she may only pursue discovery from WSP Defendants in relation to Trooper Vanderwielen and her excessive force claim against him under the Fourth

Amendment. (3) The Clerk shall send a copy of this Order to the parties. Dated this 21st day of July, 2022. A United States Magistrate Judge