Eckard v. Zacharias

• Court: District Court, W.D. Washington
• Decided: October 18, 2019
• Docket: 2:19-cv-00833
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 GABRIEL ALLEN ECKARD, 9 Plaintiff, Case No. C19-833 BJR-MLP 10 v. ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF 11 KAREN ZACHARIAS, COUNSEL 12 Defendant. 13 14 Plaintiff brings this civil rights action under 42 U.S.C. § 1983 alleging deliberate 15 indifference to a serious medical need. (Dkt. # 5 (“Verified Compl.”).) Plaintiff is proceeding 16 with this action pro se and in forma pauperis. The present matter comes before the Court on 17 Plaintiff’s motion for appointment of counsel. (Dkt. # 17.) Defendant Zacharias opposes 18 Plaintiff’s motion. (Dkt. # 18.) After careful consideration of the motion, the governing law, and 19 the balance of the record, the Court finds that the complexity of the legal issues present in this 20 case and Plaintiff’s ability to articulate his claims do not constitute exceptional circumstances to 21 justify the appointment of counsel. Plaintiff’s motion for appointment of counsel (dkt. # 17) 22 therefore is DENIED. 23 1 Generally, a person has no right to counsel in a civil action. See Campbell v. Burt, 141 2 F.3d 927, 931 (9th Cir. 1998). In certain “exceptional circumstances,” the Court may request the 3 voluntary assistance of counsel for indigent civil litigants under 28 U.S.C. § 1915(e)(1). 4 Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). When determining 5 whether “exceptional circumstances” exist, the Court considers “the likelihood of success on the

6 merits as well as the ability of the [plaintiff] to articulate his claims pro se in light of the 7 complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 8 Neither factor is dispositive, and they must be viewed together before reaching a decision on a 9 request for counsel. Id. 10 The Court concludes Plaintiff has not shown a likelihood of success on the merits. In 11 addition, Plaintiff appears able to articulate his claims pro se given that the legal issues are not 12 particularly complex. Indeed, the single claim against one defendant raised in Plaintiff’s action – 13 a violation of his right to adequate medical care – is straightforward in terms of both the law and 14 the facts. To the extent Plaintiff claims difficulties developing the factual record and conducting

15 discovery, those issues are not unique to him. If such difficulties were sufficient to establish 16 “exceptional circumstances,” nearly every pro se prisoner would be entitled to pro bono counsel. 17 See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require 18 development of further facts during litigation and a pro se litigant will seldom be in a position to 19 investigate easily the facts necessary to support the case. If all that was required to establish 20 successfully the complexity of the relevant issues was a demonstration of the need for 21 development of further facts, practically all cases would involve complex legal issues 22 [warranting appointment of counsel].”). 23 1 Accordingly, the Court concludes that Plaintiff has not established exceptional 2 circumstances warranting the appointment of counsel and therefore DENIES his motion to 3 appoint counsel (dkt. # 17). 4 Defendant Zacharias requests the Court strike the offensive language in Plaintiff’s 5 motion. (Dkt. # 18 at 2 n.1.) Specifically, Plaintiff repeatedly refers to Defendant Zacharias as

6 “Burger Queen.” (Dkt. # 17 at 1-2.) The Court finds this language impertinent and immaterial 7 pursuant to Rule 12(f). The Court cautions Plaintiff that any further derogatory statements 8 regarding Defendant Zacharias contained in a pleading before this Court will require the Court to 9 strike the entire pleading. The Court therefore ORDERS this language be stricken from the 10 record. 11 The Clerk is directed to send a copy of this Order to plaintiff and to the Honorable Barbra 12 J. Rothstein. 13 Dated this 18th day of October, 2019. 14

15 A 16 MICHELLE L. PETERSON United States Magistrate Judge 17

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