Duncan v. Allen

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 SHANELL K. DUNCAN, CASE NO. 3:23-CV-5285-MJP-DWC Plaintiff, 9 v. ORDER DENYING APPOINTMENT 10 OF COUNSEL ALVIN R. ALLEN, et al., 11 Defendants. 12

13 Presently pending before the Court is Plaintiff Shanell K. Duncan’s fourth Motion for 14 Appointment of Counsel. Dkt. 63. 15 As the Court previously stated (see Dkts. 20, 41, 56), there is no constitutional right to 16 appointed counsel in a 42 U.S.C. § 1983 action. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th 17 Cir. 1981); see United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995) 18 (“[a]ppointment of counsel under this section is discretionary, not mandatory”). In “exceptional 19 circumstances,” a district court may request counsel for indigent civil litigants pursuant to 28 20 U.S.C. § 1915(e)(1) (formerly 28 U.S.C. § 1915(d)). Rand v. Rowland, 113 F.3d 1520, 1525 (9th 21 Cir. 1997), overruled on other grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether 22 exceptional circumstances exist, the Court must evaluate both “the likelihood of success on the 23 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity 24 of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) 1 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts 2 showing he has an insufficient grasp of his case or the legal issues involved and an inadequate 3 ability to articulate the factual basis of his claims. Agyeman v. Corrections Corp. of America, 4 390 F.3d 1101, 1103 (9th Cir. 2004).

5 At this time, Plaintiff has not shown, nor does the Court find, this case involves complex 6 facts or law. Plaintiff has also not shown he is likely to succeed on the merits of his case or 7 shown an inability to articulate the factual basis of his claims in a fashion understandable to the 8 Court. The Court notes that some of Plaintiff’s claims survived a motion to dismiss. See Dkts. 9 42, 44. However, simply because Plaintiff has stated a claim upon which relief may be granted 10 does not indicate Plaintiff is likely to succeed on the merits of his claims. Additionally, Plaintiff 11 is able to clearly articulate his requests in a way that is understandable to the Court. 12 Plaintiff now asserts he is in administrative segregation, has limited access to a law 13 library, and is no longer receiving assistance from inmates. Dkt. 63. These assertions do not 14 show Plaintiff should have counsel appointed by the Court. While Plaintiff may be able to better

15 litigate this case with appointed counsel, that fact, alone, does not establish an exceptional 16 circumstance warranting the appointment of counsel. See Rand, 113 F.3d at 1525; Wilborn, 789 17 F.2d at 1331. Therefore, the Court finds Plaintiff has failed to show the appointment of counsel 18 is appropriate. Accordingly, Plaintiff’s fourth Motion for Counsel (Dkt. 63) is denied. 19 Dated this 30th day of April, 2024. 20 A 21 David W. Christel Chief United States Magistrate Judge 22 23 24