Cox v. Narkiewicz

• Court: District Court, W.D. Washington
• Decided: January 28, 2021
• Docket: 2:19-cv-01486
• Status: Unknown

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 JOHN LESTER COX, CASE NO. C19-1486-JCC 10 Plaintiff, ORDER 11 v. 12 MIRA NARKIEWICZ, et al., 13 Defendants. 14

15 This matter comes before the Court on Plaintiff John Lester Cox’s motion for a second 16 extension of time to object to Magistrate Judge Peterson’s Report and Recommendation, motion 17 to appoint counsel, and motion requesting that the Court order Stafford Creek Correctional 18 Facility to provide him with a personal copy of the Federal Rules of Civil Procedure (Dkt. No. 19 35). Having thoroughly considered the parties’ briefing and the relevant record, the Court hereby 20 GRANTS Plaintiff’s motion for an extension of time and DENIES Plaintiff’s motions to appoint 21 counsel and for a personal copy of the Federal Rules. 22 On November 10, 2020 Magistrate Judge Peterson filed a Report and Recommendation 23 (“R&R”) recommending that the Court dismiss Mr. Cox’s First Amendment and Eighth 24 Amendment claims with prejudice. (See Dkt. No. 29.) Magistrate Judge Peterson set the deadline 25 for Mr. Cox to object for twenty-one days after the R&R was filed. (See id. at 22.) Accordingly, 26 Mr. Cox’s deadline to object was December 1, 2020. 1 Before that deadline expired, Mr. Cox moved for an extension because he learned after 2 the R&R was filed that he had a mass on his thyroid that needed to be biopsied. (See Dkt. No. 30 3 at 1, 4–5.) The Court granted Mr. Cox’s motion in part, extending the deadline to object to the 4 R&R until January 5, 2021. (See Dkt. No. 34.) 5 Over the past several months, the Stafford Creek Corrections Center, where Mr. Cox is 6 incarcerated, imposed several measures to combat the spread of COVID-19. (See Dkt. No. 35 at 7 1–3.) As a result, Mr. Cox was not allowed to access his writing materials for several weeks and 8 did not receive notice of the Court’s order extending his deadline to object to the R&R until 9 January 6, 2021, after the deadline had already passed. (Id. at 3–4.) Mr. Cox now seeks another 10 30-day extension of his deadline to object to the R&R. (Id. at 4.) Defendants do not object. (Dkt. 11 No. 36 at 1.) Having thoroughly reviewed the record, the Court finds good cause to extend the 12 deadline by 30 days.1 13 Mr. Cox also requests that the Court appoint counsel and order Stafford Creek to provide 14 him with a personal copy of the Federal Rules of Civil Procedure. (Dkt. No. 35 at 4.) 15 The appointment of counsel for a pro se litigant in a civil case “is a privilege and not a 16 right.” United States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965). A court may 17 appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) but should do so 18 “only in exceptional circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). 19 When determining whether exceptional circumstances justify the appointment of counsel, the 20 Court considers “the likelihood of success on the merits and the ability of the petitioner to 21 articulate his claims pro se in light of the complexity of the legal issues involved.” Wilborn v. 22 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 23 (9th Cir. 1983)). Having considered those factors, the Court concludes that this case does not 24

25 1 Because Mr. Cox’s inability to object by the deadline was caused almost entirely by events outside of his control, the Court also finds that Mr. Cox has demonstrated “excusable neglect.” 26 Fed. R. Civ. P. 6(b)(1)(B). 1 present exceptional circumstances justifying appointment of counsel. 2 Based on the present record, the Court also DENIES Plaintiff’s motion for a copy of the 3 Federal Rules of Civil Procedure. Mr. Cox has not shown that he is unable to access the Federal 4 Rules through the Stafford Creek Law Library. Therefore, the Court DENIES this motion. 5 In sum, the Court GRANTS Plaintiff’s motion for an extension of time to object to the 6 R&R, DENIES Plaintiff’s motion for appointment of counsel, and DENIES Plaintiff’s motion 7 requesting that the Court order Stafford Creek to provide him with a personal copy of the Federal 8 Rules of Civil Procedure. Plaintiff’s new deadline to object to the R&R is Thursday, February 4, 9 2021. 10 DATED this 28th day of January 2021. A 11 12 13 John C. Coughenour 14 UNITED STATES DISTRICT JUDGE

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