Ejonga v. Watanabe

• Court: District Court, W.D. Washington
• Decided: February 6, 2023
• Docket: 2:21-cv-01004
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOJO DEOGRACIAS EJONGA, CASE NO. 2:21-cv-01004-RJB-JRC 11 Plaintiff, ORDER DENYING MOTION TO 12 v. APPOINT COUNSEL 13 CHERYL STRANGE, et al., 14 Defendants. 15 16 This matter is before the Court on referral from the district court and on plaintiff’s motion 17 for the appointment of counsel. See Dkt. 122. 18 There is no constitutional right to appointed counsel in a § 1983 civil action. See Storseth 19 v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, in “exceptional circumstances,” a 20 district court may appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1) 21 (formerly 28 U.S.C. § 1915(d)). Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled 22 on other grounds, 154 F.3d 952 (9th Cir. 1998). To decide whether exceptional circumstances 23 exist, the Court must evaluate both “the likelihood of success on the merits [and] the ability of 24 1 the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 2 involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. 3 Look, 718 F.2d 952, 954 (9th Cir. 1983)). A plaintiff must plead facts showing he has an 4 insufficient grasp of his case or the legal issues involved and an inadequate ability to articulate 5 the factual basis of his claims. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101,

6 1103 (9th Cir. 2004). 7 In support of his motion to appoint counsel, plaintiff lists barriers that are common to pro 8 se prisoners. For example, plaintiff claims he cannot afford a lawyer, that his imprisonment will 9 greatly limit his ability to litigate the case, and that a lawyer will be better suited to handle a trial. 10 See Dkt. 122 at 1–2. Unfortunately, because these barriers are common, they are not considered 11 exceptional circumstances that warrant the appointment of counsel. See Siglar v. Hopkins, 822 12 Fed. App’x 610, 612 (9th Cir. 2020) (denying appointment of counsel because plaintiff’s 13 “circumstances were not exceptionally different from the majority of the challenges faced by pro 14 se litigants) (citations omitted); see also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)

15 (holding that limitations in plaintiff’s ability to prepare for trial due to his imprisonment were not 16 exceptional circumstances to appoint counsel). There may come a time when the courts or 17 Congress will recognize that these conditions compel the appointment of counsel without charge. 18 But we are not there yet. Therefore, the law says these conditions, alone, do not compel this 19 Court to appoint pro bono counsel. 20 The Court notes that plaintiff has been litigating this action since July 27, 2021 without 21 counsel and the Court has not had trouble understanding plaintiff’s arguments or requests. 22 Plaintiff also has not shown that he is likely to succeed on the merits of his claims. Further, 23 plaintiff appears to want an attorney to help with discovery, see Dkt. 122 at 1, but the discovery 24 1 deadline already passed and the Court has not extended the deadline. See Dkt. 120 (setting 2 discovery deadline to January 23, 2023). Accordingly, the Court declines to appoint counsel in 3 this action and denies plaintiff’s motion. Dkt. 122. 4 Dated this 6th day of February, 2023. 5 A 6 J. Richard Creatura United States Magistrate Judge 7

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